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[2012] ZAGPPHC 110
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Minnie v South African National Roads Agency (24239/06) [2012] ZAGPPHC 110 (15 June 2012)
NOT REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
Case number: 24239/06
DATE:15/06/2012
In
the matter between:
MINNIE,
JACOBUS GERHARDUS
JOHANNES
......................................................
PLAINTIFF
and
THE
SOUTH AFRICAN NATIONAL ROADS AGENCY
…...................................
DEFENDANT
and
NDODANA,
BECKER AND ASSOCIATES
.............................................
FIRST THIRD PARTY
NDODANA
CONSULTING ENGINEERS (PTY) LTD
….....................
SECOND
THIRD PARTY
BLACK TOP SURFACES (PTY) LIMITED
….........................................
THIRD THIRD PARTY
JUDGMENT
RAULINGA, J
[1]
The Applicant (Defendant in the main action) seeks an order for
condonation for the late delivery of its notice of amendment,
which
was delivered pursuant to the upholding of an exception brought by
the
Respondent (the third third party in the main action). The Applicant
also seeks an order that it be permitted to amend its annexure
to the
Respondent's notice in accordance with the notice of amendment.
[2]
The Respondent was joined as a third third party by the Applicant
based on a written contract concluded between the Applicant
and the
Respondent ("the contractor agreement"). The parties will
therefore be referred to as Applicant and Respondent.
The application
for condonation and application for leave to amend are both opposed
by the Respondent. Since no replying affidavit
was filed, the
application will be decided on the founding and answering affidavits.
[3]
In July 2006 the Plaintiff (in the main action) commenced action
against the Applicant for payment of damages in the amount
of Rl 668
208.00 being damages which he sustained when the motor vehicle which
he was riding struck a hole in the surface of the
N12 freeway. The
Plaintiff alleges that the Applicant was negligent in causing his
damages in that it did not repair the hole in
the freeway which it
was obliged to do.
[4]
The Applicant has delivered a plea in which it denies that it is
liable to the Plaintiff, and at the same time delivered a third
party
notice joining the three third parties. The joinder of third parties
by the Applicant was based on written contractor agreement
concluded
between the applicant and the third parties. In respect of each third
party the Applicant advanced the following claims:
(a)
Firstly, a claim for an indemnity based on the ordinary grammatical
meaning of the contractor agreement;
(b)
Alternatively a contractual claim for damages in the event that the
indemnity claim did not succeed;
(c)
Further alternatively a claim for a contribution on the basis that
the Respondent was a joint wrongdoer together with the Applicant
in
respect of the damages claimed by the Plaintiff from the Applicant, s
The claim for a contribution is advanced in the alternative
to the
claim for indemnity and contractual damages.
[5]
The first and second third parties delivered a plea to the third
party notice. The Respondent delivered an exception to the
third
party notice. The exception which the Respondent delivered was in
essence that the ordinary grammatical meaning of the relevant
provisions of the agreement did not entitle the Applicant to claim an
indemnity from the Respondent where the Applicant was itself
negligent, and that the Applicant was not permitted to claim damages
from the Respondent because the agreement limited the Applicant
to
the type of claim m contemplated in the agreement - which claim the
Respondent said did not exist thereby effectively immunising
itself
from liability vis a vis the Applicant.
[6]
On the 3rd December 2010 Msimeki J granted an order upholding the
exception with costs, striking out the allegations in the
third party
notice in so far as they relate to the Respondent, granting the
Applicant 20 days from date of the order to deliver
an amendment and
in the absence of an amendment to the third party notice the
applicant's claim against the Respondent would be
struck out.
[7]
The Applicant's amendment to the third party notice was delivered on
7th January 2011 which is 3 days after the expiry of the
20 day
period allowed for in the judgment of Msimeki J. The Applicant
submits that the 3 day delay was not the result of a wilful
default
by itself. However the Respondent opposes the condonation of the late
delivery of the amendment and the amendment.
[8]
It is common cause between the parties that on the 3 December 2010,
Msimeki J granted the order in the exception affording the
Applicant
20 days to amend the annexure to its third party notice. It is also
common cause that the 20 day period expired on the
4th January 2011.
The notice of amendment only reached the Respondent's attorneys on
the 7th January 2011.The Applicant cites a
number of reasons why the
notice of amendment could not be served on time.
[9]
In the first place, when the Applicant's attorneys made an attempt to
serve the notice at the address reflected on the notice
of amendment
as being the offices of the Respondent's Pretoria correspondent, the
offices were closed for the Christmas break.
Secondly, the
Applicant's Pretoria correspondent's office re-opened on 5th January
2011 and the responsibility for delivering the
notice was assigned to
a new candidate attorney who was not advised of the urgency
associated with the need to serve the notice
of amendment. In short,
the Applicant apportions the main cause of delay on its attorneys.
However, the Respondent does not accept
any explanation advanced by
the Applicant, contending that there was no service.
[10]
In considering an application for condonation of a failure to serve a
notice timeously, a court may have regard to the requirement
of good
cause. The determination of good cause entails a consideration of all
of those factors which had a bearing on the fairness
of granting
condonation and affecting the proper administration of justice. The
relevant factors might include:
(i)
the prospects of success in the proposed action;
(ii)
the reasons for the delay;
(iii)
the sufficiency of the explanation offered;
(iv)
the bona fides of the applicant; and
(v)
any contribution by other persons or parties to the delay and
the
applicant's responsibility thereto.
A
Respondent, who raises prejudice, must lay a basis for its existence
- the court cannot assume prejudice - Madinda v Minister
of * Safety
and Security 2008(4) SA 31 - para [10] at 316 E-F and para [21] at
3201-J.
[11]
In general terms the interest of justice play an important role in
condonation applications. The Applicant is required to set
out fully
the explanation for the delay, and the explanation must be reasonable
and cover the entire period of the delay. The Applicant
puts the
cause of the delay squarely on the threshold of its attorneys and
Counsel. This explanation is given in detail. It also
gives an
explanation why the notice of amendment was served only on the 7th
January 2011.
[12]
It is trite that where an applicant has satisfactorily explained to
the court the reason for his default, and it is apparently
not due to
any act on his part, but may have been due either to neglect or
oversight on the part of his attorneys, or to some misunderstanding
between the attorneys and the client, and the Applicant states that
he has a good defence on the merits, the court should not scrutinise
too closely whether the defence is well-founded, as long as prima
facie there appears to the court sufficient reason, for allowing
the
defendant to lay before the court the facts he thinks necessary to
meet the plaintiff's claim. Further, the contention by the
Respondent
that the attorney who alleges that he handled the notice of amendment
does not have the knowledge of all the relevant
facts although he has
deposed to an affidavit cannot be upheld. It is not necessary for an
attorney who had failed to enter appearance
to defend or in this
case, who failed to file an affidavit timeously to explain the
circumstances, since there was a power of attorney
indicating
Applicant's intention to enter appearance or file an amendment -
Josub v Natal Bank Ltd 1908 NDP at 377 -379.
[13]
Although the Applicant has set out fully the explanation for the
delay, this may be plagued by the requirement of 'good cause'
under
which is subsumed the factor of "prospect of success"
already discussed above. In its proposed notice of amendment
the
Applicant cites the original third party notice in which it advanced
certain claims. The claim's advanced in the original third
party
notice were held as excipiable by Msimeki J. Three separate claims
and alternative claims were advanced in the original third
party
claim:
"1.
the first claim advanced by the defendant against the third party in
the original third party notice was that the plaintiff's
claim
against the defendant fell within the purview of the indemnity set
out in clause 17 of the contractor agreement and that
the third party
was liable to indemnify the defendant.
2.
the second claim, which was advanced in the original third party
notice which was advanced in the alternative to the claim for
an
indemnity, was that the third party had breached the contract
agreement in consequence of which the defendant had suffered damages
in the amount equal to its liability to the plaintiff and that the
first party was liable to pay those damages to the plaintiff.
3.
the third claim which was advanced in the original third party
notice which was advanced in the alternative to the indemnity
and the
contracted damages claim was a claim for contributions. In this claim
the defendant alleged that the third party was joint
wrongdoer
and that the defendant in respect of the plaintiff's damages and that
the defendant was entitled to a contribution from
the third party
having regard to the defendant's and third party's relative degree of
negligence.
[14]
According to the Applicant, the exception which the respondent took
to the original third party notice, attacked the indemnity
claim and
the damages claim, but the Respondent limited itself to the
alternative claim for contractual damages. Accordingly, the
claim for
a contribution by the Applicant from the Respondent does not arise
from the written agreement therefore the allegations
raised by the
Respondent in paragraph 9 of the exception in regulating their
relationship in terms of the agreement have no application
to and can
certainly not trump a statutory right to a contribution.
[15]
The Applicant's proposed amendment to the third party notice
introduces new claims. The said new claims are tabulated by the
Applicant. It is not necessary to regurgitate the said claims. On the
proper interpretation claim which the Applicant proposes
to introduce
by way of amendment, the Applicant submits it is not based on an
isolated grammatical interpretation of clause 17
of the contractor
agreement. The Applicant contends that the proper interpretation is
premised on an interpretation which has regard
to certain specified
background and surrounding facts which were within the knowledge of
the parties at the time of conclusion
of the contract agreement. Of
paramount importance is that the Applicant avers that the proper
interpretation claim which the Applicant
advances in its notice of
amendment was not considered by Msimeki J. Therefore, the Applicant
concludes, that Msimeki J made a
finding without any regard to
background and surrounding facts which could have played a role in
the interpretation of clause 17
- he only interpreted clause 17 with
regard to grammatical meaning only - the Applicant instead now seeks
a pro rata indemnity.
This is different from what Msimeki J "
pronounced.
[16]
Our courts have laid down a principle that according to the 'golden
rule' of interpretation the language in the document is
to be given
its grammatical and ordinary meaning, unless this would result in
some absurdity or some repugnancy or consistency
with the rest of the
instrument. The correct approach to the application of the 'golden
rule' of interpretation after having ascertained
the literal meaning
of the word or phrase in question is broadly speaking to have regard
to:
(i.)
the content in which the word or phrase is used with its
interrelation to the contract as a whole including the nature and
*
purpose of the contract.
(ii.)
the background circumstances which explain the genesis and purpose of
the contract, i.e. to matters probably present to the
minds of the
parties when they contracted.
(iii.)
to apply the extrinsic evidence regarding the surrounding
circumstances when the language of the document is on the face
of it
ambiguous, by considering previous negotiations and correspondence
between the parties showing the sense in which they acted
on the
document, save direct evidence of their own intention. (Coopers &
Lybrand and others v Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
at 767E and 768 A-D.)
[17]
The Applicant submits that the proposed amendment that it wishes to
introduce is not based on an isolated grammatical interpretation
of
clause 17 of the contractor agreement, but on the proper
interpretation which is premised on an interpretation with regard to
certain specified background and surrounding facts which were within
the knowledge of the parties at the time of the conclusion
of the
contractor agreement. Applicant submits that Msimeki J did not
consider this aspect in his judgement. However, it appears
to me that
Msimeki J in interpreting clause 17 considered the background and
surrounding circumstances which are subsumed under
the so called
"proper interpretation". Despite this observation there is
no harm that will befall the Respondent if amendment
is allowed on
this aspect as well. In any event, the court has the inherent powers
to grant an amendment of a fatally defective
summons so as to cure
the defect where such amendment will occasion no prejudice to the
Respondent. This case is not an exception
to the rule.
[18]
The Applicant now abandons its notice of amendment made in amended
paragraphs 42 and 43 of the third party notice. The second
claim is
no longer a claim for contractual damages, because Msimeki J has
found that such a claim is not permitted in terms of
the contractor
agreement .The second claim is now advanced in the notice of
amendment on the basis of rectification to clause 17
of the
contractor agreement. The effect thereof is that the respondent will
indemnify the Applicant only to the extent of the third
party's
negligence.
[19]
In my view it does not matter whether the same phrase is introduced
or not. The main purpose of the rectification is to use
phrases which
will fit into clauses 17(i) (a) and 17 (i) (b). Nothing prevents the
Applicant from rectifying the standard form.
The answer can be found
in the detail of the necessity for the Applicant to present its case
properly.
[20]
It is indeed trite that a party who has made his case in the
pleading, and wishes to change or add to this, he must explain
the
reason and show prima facie that he has something deserving of
consideration, a triable issue, he can not be allowed to harass
his
opponent by an amendment which has no foundation. But in a similar
vein it must be accepted that the aim in allowing an amendment
to
pleadings should be to do justice between the parties by deciding the
real issue between them. The mistake or neglect of one
of them in the
process of placing the issue on record is not to stand in the way of
this. His punishment is in his being mulcted
in the wasted costs. -
Trans -Drakensberg -Bank Ltd v Combined Engineering
1967 (3) SA 632
D
& C.L.D.
[21]
I am satisfied that the Applicant has explained why paragraph 42 of
the third party notice does not contain reference to mistake.
I agree
with the Applicant that the "triable issue" cannot be
divided at this stage and that evidence in that regard
must be heard.
The second claim based on rectification is upheld.
[22]
The third claim which the Applicant proposes to introduce into the
third party notice is a claim for contribution from the
third party
as a joint wrongdoer vis a vis the plaintiff together with the
Applicant. My reading of Msimeki J judgment at page
21 para 90 is
that in the ^ original third party notice the plaintiff had not
claimed any sum of apportionment and that the Applicant
has not
claimed contribution from the third party.
[23]
It is my considered view that a party claiming contribution does not
depend on the plaintiff claiming apportionment before
it can claim
contribution from a third party. The issue concerning the duty of
care can be raised during the trial. I am with the
Applicant that
findings which were made by Msimeki J to the effect that the original
third party did not allege facts from which
a duty of care owed by
the third party arose, or that the negligence relied on could not
consist solely of a breach of the terms
of the contractor agreement
do not apply to the new contribution claim. The argument of the
Applicant is sustained.
[24]
There exists a rule of practice that the issue of a summons is the
initiation process of an action and has certain specific
consequences, one of which is that it must be served. Mere
'knowledge' of the issue of a summons is not service and a plaintiff
is not relieved of his obligation to follow the prescribed Rules -
First National Bank of SA Ltd v Schweizer Drankwinkel (Pty)
Ltd
1998(4) SA 565(NCD). In my view, the present case is distinguishable
in that the action has already been initiated by means
of a summons
which was properly served. The process now in question is service of
a notice of amendment which although not served
properly, by chance
landed in the hands of the Respondent. The Respondent reacted to the
said process.
[25]
Moreover, applications for rescission of default judgment, removal of
bar, leave to defend an application and extension of
time for the
filing of pleadings must be seen as a species of the same genus. In
all these cases there is a failure by a litigant
to act timeously in
terms of the Rules and who seeks the indulgence of the court so as to
allow him to proceed with his action
or defence. A party who seeks an
indulgence must show 'good cause' - this gives the court a wide
discretion which must, in principle,
also be exercised with regard to
the merits of the matter seen as a whole - Du Plooy v Anwes Motors
(EDMS) BPK 1983 (4) 2010(OPD).
[26]
The merits of this case demand that condonation should be granted to
allow the Applicant to prosecute its case. Amendments
to pleadings
are as a rule allowed to do justice between the parties by deciding
the real issues between them. The amendment will
be refused, only if
to allow it would cause prejudice to the other party not remediable
by an order of costs and where appropriate
a postponement. The
respondent has not succeeded in showing that it has suffered any
prejudice. As a consequence the amendment
is allowed.
[27]
It is also vital to note that Rule 28 (10) ordains the court
notwithstanding anything to the contrary in this rule, at any
stage
before judgment is granted leave to amend any pleading or document on
such other terms as to costs or other matters as it
deems fit.
[28]
Delay in bringing forward an amendment is in itself, in the absence
of prejudice, no ground for refusing an amendment as already
stated
above. In the absence of prejudice to the other party, leave to amend
may be granted at any stage, however careless the
mistake or omission
may have been, and however late may be the application for amendment
- Krongman v Van Reenen
1926 OPD 191
AT 193. In casu the Applicant
was only late by three days. It is in the interest of justice that
condonation be granted and that
the Applicant be allowed to amend its
particulars of claim.
[29]
I therefore make the following order:
(a)
Condonation to amend is granted.
(b)
The Applicant is granted 15 days to file its amendment. '
(c)
The Applicant is ordered to pay costs of the amendment.
(d)
The Respondent is ordered to pay the costs of the application.
TJ
RAULINGA
JUDGE
OF THE HIGH COURT NORTH GAUTENG HIGH COURT
FOR
THE CLAIMANT: ADV I P GREEN
INSTRUCTED
BY: SAVAGE JOOSTE & ADAMS INC
FOR
RESPONDENT/THIRD PARTY: ADV BRUCE BERRIDGE SC
INSTRUCTED
BY: EVERINGHAM, ROGERS, NEL & PARTNERS
C/o
STUART VAN DER MERWE INC
DATE
OF JUDGMENT: 15 .06.12
HEARD
ON: 22.09.11