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[2012] ZAKZDHC 73
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Thomas v Thomas (15322/2010) [2012] ZAKZDHC 73 (12 November 2012)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO. 15322/2010
In
the matter between:
JILL
CECILIA THOMAS
................................................................................
PLAINTIFF
and
IAN
TREVOR LLEWELLYN THOMAS
......................................................
DEFENDANT
J
U D G M E N T
STEYN
J
[1] This is an application for an
amendment of an intendit in terms of Rule 28 of the Uniform Rules of
Court. On 24 October 2012
the application for leave to amend the
intendit was argued. The applicant who is the plaintiff in the
proceedings before Court
applied that the following be inserted
:
“
1.
By including the following new paragraphs after paragraph 18 of the
Intendit
“
19
19.1
On or about 23 October 2002 and at Durban the parties, both acting
personally, entered into a written agreement of settlement of
which a
copy is annexed hereto as “B”;
19.2
The express,
alternatively
implied,
alternatively
tacit material terms of the
agreement were inter alia:
19.2.1
Each party was entitled to one half of the combined value of the
respective estates of the parties;
19.2.2
Both parties warranted that they had made a full disclosure of their
assets and liabilities;
19.2.3
In the event that the Plaintiff was able to prove that the Defendant
owned any assets as at the date of the agreement not
disclosed by him
in annexure “A” to the agreement the Plaintiff shall be
entitled to an amount equal to 75% of such
assets as at the date of
divorce;
19.2.4
In the event that the Plaintiff made investigations and located
assets in the estate of the Defendant not disclosed by him
to which
the Plaintiff would be entitled in terms of clause 13.2 of the
agreement the Defendant would be liable for the costs incurred
by the
Plaintiff in such investigations;
20
The Plaintiff has caused investigations to be made both in South
Africa and abroad by the following persons:
20.1
Mr Marinus van Jaarsveld of Marinus van Jaarsveld Attorneys during
the period subsequent to the court order to date; and
20.2
Bond Associates Limited, Investigative accountants of Belgrave Court,
Westferry Circus, London, United Kingdom.
21
As a consequence of the investigations made by the persons referred
to in paragraph 20 above the Plaintiff: -
21.1
discovered certain assets in the estate of the Defendant, as set out
in paragraph 12 above, which he failed to discover at
the date of the
agreement;
21.2
incurred costs.
22
The incurring of investigative costs was contemplated by the parties
when they entered into the agreement, annexure “B”.
23
In the premises the Defendant is liable to the Plaintiff in the
amount of R575 300,87, being the investigative costs incurred.”
2.
By inserting new prayers 8 and 9 which read as follows:
‘
8.
Payment of the sum of R575 300.87
Interest
on the sum of R575 300.87 a tempore morae.’
3.
By renumbering the existing prayers 8 and 9 to read 10 and 11.”
[2] The defendant opposed the
application on the basis that the proposed contractual term that the
applicant seeks to introduce
by the amendment would render the
intendit excipiable since it offends the “no variation”
clause in the written agreement,
it also offends the Conventional
Penalties Act No. 15 of 1962 (hereinafter referred to as “the
Act”).
[3] In my view the crisp issue to
decide is whether the proposed amendment would cause the intendit to
be excipiable in that it
introduces an implied or tacit material term
to the contract and whether such amendment would offend the
provisions of the Conventional
Penalties Act.
[4] It is necessary to state that the
plaintiff and the defendant were previously married to each other and
that the marriage was
dissolved by a final order of divorce granted
by this Court on 23 October 2002. Prior to the final order being
granted the parties
entered into a written settlement agreement,
which regulated
inter alia
the proprietary consequences after
the divorce.
Legal Regime
[5] The principles that apply to an
application for amendment are trite and need not be repeated. Rule 28
of the Uniform Rules of
Court must also find application. The Rule
reads, in part, as follows:
“
28(1)…..
The
notice referred to in subrule (1) shall state that unless written
objection to the proposed amendment is delivered within
10 days of
delivery of the notice, the amendment will be effected.
An
objection to a proposed amendment shall clearly and concisely state
the grounds upon which the objection is founded.
If
an objection which complies with subrule (3) is delivered within the
period referred to in subrule (2), the party wishing to
amend may,
within 10 days, lodge an application for leave to amend.
If
no objection is delivered as contemplated in subrule (4), every
party who received notice of the proposed amendment shall be
deemed
to have consented to the amendment and the party who gave notice to
the proposed amendment may, within 10 days of the
expiration of the
period mentioned in subrule (2), effect the amendment as
contemplated in subrule (7).”
The discretion that should be
exercised by a court, seized with the application, should be
exercised judicially. In
Moolman v Estate Moolman and Another
1927 CPD 27
the Court held:
“
The
question of amendment of pleadings has been considered in a number of
English cases. See for example: Tildesley v Harper
(10 Ch.D. 393)
;
Steward v North Met. Tramways Co.
(16 Q.B.D. 556)
and 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
.”
1
(My
emphasis.)
[6] In
Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd
and Another,
2
the Court comprehensively reviewed the
jurisprudence applicable to amending pleadings and held:
“
The
amendment will be refused only if to allow it would cause prejudice
to the other party not remediable by an order for costs
and, where
appropriate, a postponement. It is only in this relation, it seems to
me, that the applicant for the amendment is required
to show it is
bona
fide
and
to explain any delay there may have been in making the application,
for he must show that his opponent will not suffer prejudice
in the
sense I have indicated. He does not come as a suppliant, cap in hand,
seeking mercy for his mistake or neglect. Having already
made his
case in his pleading, if he 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
cannot be allowed to harass his place on the record an issue
for
which he has no supporting evidence, where evidence is required, or,
save perhaps in exceptional circumstances, introduce an
amendment
which would make the pleading excipiable (
Cross
v Ferreira, supra
at
p. 450) or deliberately refrain until a late stage from bringing
forward his amendment with the purpose of catching his opponent
unawares (
Florence
Soap and Chemical Works (Pty) Ltd v Ozen Wholesalers (Pty) Ltd
1954
(3) SA 945
(T), or of obtaining a tactical advantage or of avoiding a
special order as to costs (
Middleton
v Carr
1949
(2) SA 374
(AD) at p. 386).”
3
[7] In exercising a discretion it
should be borne in mind that an amendment which would render a
pleading excipiable should not
be allowed. In
Du
Plessis and Another v De Klerk and Others
4
Van Dijkhorst explained the position
as follows:
“
Whether
a pleading would or would not become excipiable is a matter of law
which should be decided by the Court hearing the application
for the
amendment.”
5
The Written Agreement
[8] The preamble to the agreement that
is pivotal to the application stipulates that the parties have
reached agreement with regard
to maintenance, property and other
proprietary and ancillary consequences of the divorce and wish to
record their agreement in
writing.
6
It is evident from the final order of
divorce that the parties were at all times mindful of their right to
obtain information about
the other party’s assets, so much so,
that they have considered it necessary to incorporate part of the
agreement into the
final order. Paragraph 6 of the order reads:
“
6.
That each party hereby
irrevocably
authorises the other party or his/her agents to obtain information
regarding his/her assets
including
shares, annuities, unit trusts, share options, bank accounts,
insurance policies, provident funds, employers agreement,
tax refunds
up to and including the date of the divorce.” (My emphasis.)
Seen in the context of a divorce it is
clear from the agreement that the parties intended to finally rule
upon their assets and
any obligations that might exist between them.
The context of the written agreement is fundamentally important and
for purposes
of this judgment I shall elaborate on it. The context
denotes that the parties wanted to settle all disputes originating
from their
marital relationship as can be seen from the inclusion of
the non-variation clause. The non-variation clause reads as follows:
“
11
NO
VARIATIONS ETC
Subject
to paragraph 13:
this
agreement contains all the terms and conditions of the agreement
between the parties and shall be binding upon them on
signature by
them both;
no
variation of or abandonment or waiver of rights or obligations
shall be binding unless contained in this agreement or
subsequently reduced to writing and signed by the parties;
save
as is provided in this agreement, neither party shall have any
further claims against the other and hereby waives and
abandons
all and any such claims.”
7
Clause 13 is also important and reads:
“
13
WARRANTY
The
parties warrant that they have made a full disclosure of their
assets and liabilities.
If
Jill is able to prove that Ian owned, as at the date hereof, any
assets not disclosed by him in annexure “A”
then Jill
shall be entitled to an amount equal to 75% of such assets as at
the date of divorce.
If
Ian is able to prove that Jill owned, as at the date hereof, any
assets not disclosed by her in annexure “B”
then Ian
shall be entitled to an amount equal to 75% of such assets, as at
the date of divorce.
Ian
hereby irrevocably authorises Jill or her agents to obtain
information regarding his assets including shares, annuities,
unit
trusts, share options, bank accounts, insurance policies, provident
funds, employer’s agreement, tax returns up
to and including
the date of divorce.
Jill
hereby irrevocably authorises Ian or his agents to obtain
information regarding her assets including shares, annuities,
unit
trusts, share options, bank accounts, insurance policies, provident
funds, employer’s agreement, tax returns up
to and including
the date of divorce.”
[9] In my view the proposed amendments
ought to be considered against the terms of the written agreement and
whether the proposed
amendment would render the intendit excipiable.
It is trite that a refusal will arise where it is clear that the
pleadings “would
be excipiable” and not “may be
excipiable”.
[10] I shall now turn to the
application. The applicant seeks leave to amend her intendit to
include a claim for “investigative
costs” in the amount
of R575 300,87 that she incurred in making investigations to locate
assets in the name of the estate
of the respondent. Ms de Wet SC,
acting for the applicant, has argued that the applicant relies on an
alleged implied alternatively
a tacit material term of the agreement
that provides that in the event of the applicant making
investigations and locating assets
in the respondent’s estate
not disclosed by him which she would be entitled to in terms of
clause 13.2 of the agreement,
then the respondent would be liable for
the costs incurred by the applicant in such investigations. Mr
Skinner SC, acting for the
respondent in this application, defendant
in the main action, strongly opposed the proposed amendment in that
it would be excipiable
and in conflict with the written agreement
concluded between the parties in 2002, that a clause in a written
agreement cannot be
varied or amended by a tacit agreement and that
the proposed amendment would offend the Conventional Penalties Act.
He argued,
that the “investigative costs” fall within the
definition of penalty in the Act and that the proposed amendment
would
contravene the Act since it would entitle the plaintiff (now
applicant) to recover both the penalty and also damages, based on the
defendant’s (now respondent) breach of the written agreement.
Grounds of Objection
[11] In the light of the objections
raised by the respondent it is necessary to determine whether the
proposed term to the written
agreement would constitute an excipiable
pleading. Could it be said that the proposed amendment, i.e. the
“investigative
costs” should be part of an implied or
tacit material term to the written agreement concluded in 2002. The
parties specifically
elected to include a non-variation clause to the
contract. The effect of such a clause was definitively dealt with by
Steyn CJ
in
SA Sentrale
Ko-op Graanmaatskappy Bpk v Shifren en Andere
8
in stating:
“
Waar
partye so ‘n bepaling in hul kontrak ingelyf het, d.w.s. ‘n
bepaling wat nie slegs ander bedinge nie, maar ook
homself teen
mondelinge wysiging heet te beveilig, kan ek geen rede vind waarom
die een party nie die ander daaraan gebonde kan
hou nie. Hul
klaarblyklike doel met so ‘n bepaling is om te waak teen die
geskille en bewysmoeilikhede wat by mondelinge
ooreenkomste kan
ontstaan. Om albei daarteen te beskerm kom hulle uitdruklik ooreen
dat mondelinge wysigende ooreenkomste, ook
wat die verskansende
beding self betref, al word hul
animo
contrahendi
aangegaan,
tussen hul van nul en gener waarde sal wees. Indien ‘n party,
uit hoofde juis van ‘n mondelinge wysiging,
belet sou word om
hom op so ‘n beding te beroep, sou ons hier met ‘n soort
kontrak te doen hê wat sonder meer
nie deur ‘n hof
afgedwing word nie. Dit sou ‘n opvallende afwyking wees van die
elementêre en grondliggende algemene
beginsel dat kontrakte wat
vryelik en in alle erns deur bevoegde partye aangegaan is, in die
openbare belang afgedwing word. (
Wells
v S.A. Alumenite Co.,
1927
AD 69
op bl. 73;
Marlin
v Durban Turf Club and Others,
1942
AD 112
op bl. 131).”
[12] The Shifren principle was found
to still be good law in
Brisley
v Drotsky
9
by the majority of the Supreme Court
of Appeal. The submission that the written contract has been varied
or amended by implied or
tacit terms that include a claim for
“investigative costs” conflicts with clause 11 of the
written agreement. The purported
expansion of the written agreement
would in my view render the pleading excipiable. This Court is
mindful that it is not tasked
to deal with an exception but has to
consider on the facts and circumstances before it whether the
proposed amendment would render
the pleadings excipiable.
10
[13] This brings me to the objection
that the proposed amendment would constitute a penalty or damages as
per section 2 of the Act.
Ms de Wet has argued that the purported
amendment would not constitute a penalty or damages, since the
amendment entitles the applicant
to recover costs incurred in order
to investigate the veracity of the respondent’s disclosures and
expenses, which are not
damages.
In my view clause 13 should be
analysed and considered coupled with paragraph 6 of the final divorce
order. Paragraph 6 of the final
divorce order authorises the parties
to verify and obtain information regarding the other party’s
assets. Clause 13 of the
written agreement then stipulates that in
the case where there had not been full disclosure the party that had
failed to fully
disclose would be
penalised
,
since the “innocent party” would be entitled to 75% of
the discovered assets.
11
I fail to see how the applicant
derives at the conclusion that clauses 13.2 and 13.3 do not
constitute a penalty clause. A penalty
is defined in the
Shorter
Oxford English Dictionary
12
as:
“
A
punishment imposed for breach of a law, rule or contract. A loss or
disadvantage of some kind, either prescribed by law for some
offence,
or
agreed on in case of breach of contract
.”
(My emphasis.)
The provision that relates to the
respondent being liable to pay an amount equal to 75% of the
discovered assets clearly amounts
to the respondent being penalised.
To include “investigative costs” as proposed by the
amendment would entitle the
applicant to both a penalty and damages
and, in my view, would be in conflict with section 2 of the Act. I am
not persuaded that
the proposed amendment is not excipiable or that
it would not cause injustice to the respondent. For these reasons the
proposed
amendment cannot succeed.
[14] Accordingly the following order
is made:
The application is dismissed with
costs, such costs to include the costs of senior counsel.
………………………………………
Application heard on : 25 October 2012
Counsel for the Applicant : Adv. A De
Wet SC
Instructed by : Marinus van Jaarsveld
Counsel for the Respondent : Adv. BL
Skinner SC
Instructed by : Shepstone & Wylie
Judgment handed down on : 12 November
2012
1
Ibid
at 29.
2
1967
(3) SA 632
(D).
3
Ibid
at 640H-641C.
4
1995
(2) SA 40
(T).
5
Ibid
at 43I-J.
6
See
clauses 2.3 and 2.4.
7
See
clause 11.
8
1964
(4) SA 760
(A).
9
2002
(4) SA 1
(SCA)
10
See
Crawford-Brunt v Kavnat and Another
1967 (4) SA 308
(C) at
310G-H.
11
See
clause 13.2 and 13.3
supra
at para 8.
12
Volume
2, Oxford Press, at 2142.