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[2011] ZAFSHC 155
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Jungle Arrow 50 (Pty) Ltd v Mngomezulu (5471/2010) [2011] ZAFSHC 155 (15 September 2011)
IN
THE FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : 5471/2010
In
the matter between:-
JUNGLE
ARROW 50 (PTY) LTD
….............................................
Plaintiff
and
MUZI
MNGOMEZULU
…..........................................................
Defendant
_____________________________________________________
CORAM:
DAFFUE, AJ
_____________________________________________________
HEARD ON:
8
SEPTEMBER 2011
_____________________________________________________
DELIVERED ON:
15 SEPTEMBER 2011
_____________________________________________________
INTRODUCTION:
[1] Plaintiff seeks leave
to amend its declaration in accordance with a notice of intention to
amend dated 14 June 2011. The application
is opposed by defendant.
Ex
facie
the documents contained in the court
file plaintiff conducts the business of a building contractor while
defendant is the owner
of a private dwelling situated at 21 Pelikaan
Parade, Woodland Hills, Bloemfontein. Before considering the
application I deem it
apposite to provide a brief historical
background of the dispute between the parties.
BACKGROUND:
[2] On 1 November 2010
plaintiff issued a simple summons, claiming payment of the sum of
R225 000.00 from defendant in respect of
“work done,
services rendered and goods supplied in connection therewith by
plaintiff to the defendant at the latter special
instances (sic), and
request in and during a period April to September 2010 which amount
is currently due, owing and payable by
the defendant to the
plaintiff”
together with interest and costs of
suit.
[3] Defendant filed a
notice of intention to defend whereupon plaintiff responded with an
application for summary judgment. In his
opposing affidavit in the
summary judgment proceedings defendant stated the following:
“
3.1 I deny
indebtedness to the plaintiff in the sum of R225 000.00 or any amount
whatsoever. The applicant was contracted to me
to undertake
‘finishing touches’ in the construction of my private
dwelling. The quoted amount was paid to the applicant
in full.
3.2 Despite the agreement the
applicant failed to complete the work in time and only did so almost
three (3) months later. Furthermore
the applicant failed to perform
in accordance with the specification by failing to contract the
koipond and some plastering (
sic).
”
He concluded as follows
in paragraph 5:
“
I have a
defence and a counterclaim seeing that the applicant has not
performed in accordance with the agreement”.
On 9 December 2010 and by
agreement leave was granted to defendant to defend the main action,
costs of the application for summary
judgment to be costs in the
cause.
[4] On 18 March 2011
plaintiff amended its summons by substituting the amount of R225
000.00 with the amount of R188 248.34 after
defendant had failed to
object to the proposed amendment. Having failed to plead, defendant
was served with a notice of bar on
11 April 2011. On 5 May 2011,
apparently out of time, defendant filed a notice in terms of rule
23(1) affording plaintiff an opportunity
to remove certain causes of
complaint which allegedly rendered the declaration vague and
embarrassing and/or lacking averments
which were necessary to sustain
a cause of action.
[5] On 14 June 2011
plaintiff, in an apparent attempt to adhere to defendant’s
notice in terms of rule 23(1), served and filed
its notice of
intention to amend the declaration. On 29 June 2011 defendant
objected in writing to the intended amendment in the
following words:
“
1. It
changes the object of the cause of action to the prejudice of the
defendant.”
Hereupon plaintiff filed
an application in terms of rule 28(4) which was to be heard on 4
August 2011. The application was postponed
on that date to 1
September 2011 and ultimately to 8 September 2011.
[6] On 24 August 2011,
about two months after the notice of objection was filed and long
after filing of the application in terms
of rule 28(4), defendant
filed a document with the following heading:
“
Notice of
further objection and intended exception to proposed amendment.”
Herein defendant set out
in detail why he was of the opinion that the cause of complaint
raised in his rule 23(1) notice of 4 May
2011 had not been removed.
In so far as this document may be regarded as an objection in terms
of rule 28(3), it was filed hopelessly
out of time and there is no
application for condonation.
APPROACH TO THE
APPLICATION FOR AMENDMENT:
[7] A court enjoys a wide
discretion when it comes to an application to amend a particular
pleading. The primary object is to obtain
a proper ventilation of the
dispute between the parties. The general approach to be adopted in
applications for amendment has been
set out in numerous cases.
See Farlam
et
al
,
ERASMUS:
SUPERIOR COURT PRACTICE
B1-178;
TRANS-DRAKENSBERG BANK LTD v COMBINED
ENGINEERING (PTY) LTD
1967 (3) SA 632
(D)
at 638A and the following
dictum
of
Ngcobo, J (as he then was) in
AFFORDABLE
MEDICINES TRUST AND OTHERS v MINISTER OF HEALTH AND OTHERS
[2005] ZACC 3
;
2006 (3) SA 247
(CC) at par.9 p.261C:
“
The
practical rule that emerges from these cases is that amendments will
always be allowed unless the amendment is
mala
fide
(made in bad faith) or unless the amendment will cause an injustice
to the other side which cannot be cured by an appropriate order
for
costs, or ‘unless the parties cannot be put back for the
purposes of justice in the same position as they were when a
pleading
which it is sought to amend was filed’.”
[8] An amendment ought
not to be allowed where its introduction into the pleading would
render such pleading excipiable. See Farlam
et al
,
loc.
cit.
at B1-183 and the numerous judgments referred to in
footnote 4;
BARNARD v BARNARD
2000 (3) SA 741
(CPD) at
para. 9 – 11, p. 746G & 41, p.754F;
THEKWENI
PROPERTIES (PTY) LTD v PICARDI HOTELS LTD (AND OTHERS AS THIRD
PARTIES)
2008(2) SA 156 D & CLD at para. 9 – 11, p.
158D – I.
[9] Adv Fischer SC, who
appeared for defendant, conceded that the original notice of
objection of 29 June 2011 did not qualify as
a proper objection in
terms of rule 28(3). In my view the objection is also nonsensical. He
invited me to look at the substantial
grounds put forward in the rule
23(1) notice and to find that the declaration will remain vague and
embarrassing if the amendment
is allowed.
[10] Mr Fischer also
conceded that the further objection was filed out of time, but
invited me to accept it in so far as the objections
raised therein
are similar to those in the initial rule 23(1) notice. When I pointed
out that there was no application for condonation,
he requested me
from the bar to grant condonation for the late filing of this
document. I indicated to him that I was not prepared
to do so as no
reasons have been advanced as to why the document was filed late.
However for purposes of consideration of this
application, I shall
consider the contents of the document.
[11] In considering
whether the declaration will remain vague and embarrassing if the
amendment is allowed, I shall take cognisance
of the fact that
defendant has already put forward his defence to plaintiff’s
claim under oath and also alleged that he had
a counterclaim in so
far as plaintiff failed to comply with its contractual obligations.
It appears to be an easy task for defendant
to plead to the
declaration in its intended amended form and he will not be
prejudiced in any manner if the amendment is allowed.
[12] I also take into
consideration that if the amendment is allowed, defendant’s
right to utilise either rule 23, or rule
30 procedure (i.e. exception
or irregular proceedings procedure) will not be affected
prejudicially at all. See rule 28(8). CiIliers
et al
,
HERBSTEIN & VAN WINSEN: THE CIVIL PRACTICE OF THE HIGH
COURTS OF SOUTH AFRICA
5
th
Edition Vol.1 at p.683
authoritatively deals with the refusal of an amendment on the ground
of excipiability as follows:
“
An amendment
should be refused on the ground of excipiability
only
if it is clear that the amended pleading
will
(
not
may
)
be excipiable. If the excipiablity of the pleading is
merely
arguable
or can be cleared by the furnishing of particulars, then it is proper
to grant the amendment where the other considerations are
favourable.
It will then be left to the aggrieved party to file an exception if
he so desires.” (emphasis added.)
See
also
KRISCHKE
v ROAD ACCIDENT FUND
2004
(4) SA 358
(WLD) at 363B.
EVALUATION OF THE
ARGUMENTS:
[13] Adv Pienaar, who
appeared for the plaintiff, submitted that the purpose of the
amendment is not to introduce a new cause of
action, and even so,
there can be no prejudice to defendant as such claim had not become
prescribed. Mr Fischer did not argue that
a new cause of action was
sought to be introduced and in my view correctly so. It is apparent
from the declaration in its current
form that plaintiff relies on an
oral agreement between the parties confirmed in writing as is
apparent from annexure “
A”
thereto, together with
an oral variation of this agreement on or about 9 July 2010. It is
quite clear that in its notice of intention
to amend plaintiff merely
tries to clarify its cause of action. Unfortunately in endeavouring
to do so the pleader pleaded unnecessary
evidence and my overall
impression is that the document has been poorly and inelegantly
drafted. However in my view the reasonable
pleader acting on behalf
of the defendant will appreciate that plaintiff relies on a first
oral agreement, partly recorded in writing
as is apparent from
annexure “
A”
and a subsequent variation thereof,
partly recorded in annexure “
C”.
[14] In acknowledging the
applicable general principles I am inclined to grant the amendment in
so far as the real issue was imperfectly
pleaded initially and the
intended amendment, though not a model of clarity but not vague and
embarrassing, is designed to place
on record the true issue.
[15] The character of
plaintiff’s claim is not changed by the intended amendment. See
in this regard
SENTRACHEM LTD v PRINSLOO
1997 (2) SA 1
(A) at 15A – 16F. The primary object of allowing an amendment
is to obtain a proper ventilation of the dispute between the
parties
and this will be achieved by allowing the amendment.
[16] Mr Fischer argued
that if defendant were to consent to the proposed amendment he would
not be entitled to raise an exception
to the amended pleading as if
defendant would have forfeited his right in this regard. I cannot
agree with this submission. See
rule 28(8) referred to above. Even if
I consider the substantial grounds in the rule 23(1) notice as Mr
Fischer has invited me
to do, together with the grounds set out in
the belated second notice, I am still unpersuaded that the amendment
should not be
granted. At best for defendant it may be argued that
the amended pleading may be (and not will be) excipiable. The
relevant test
has not been satisfied. I am not prepared to find that
the amended pleading will be excipiable. It is reiterated that this
is not
a case where the amended pleading might be excipiable because
no cause of action has been pleaded, but that it is vague to such
an
extent that it is embarrassing.
[17] Mr Fischer suggested
that I should consider disallowing the amendment, but to allow
plaintiff a period of ten (10) days to
amend afresh and to make no
order as to costs. Alternatively he suggested that the matter be
removed from the roll as plaintiff
will in any event have the right
to file a new notice of intention to amend and that no order as to
costs should be made. In reply
Mr Pienaar argued that the intended
amendment will not be meaningless or capable of more than one meaning
and insisted that relief
be granted in accordance with the notice of
application.
[18] The declaration in
its amended form will not be a masterpiece, but not vague and
embarrassing. It will allow an opportunity
to obtain a proper
ventilation of the real dispute between the parties. Consequently I
am satisfied that plaintiff has made out
a proper case for the relief
claimed.
[19] Prayers 1, 2, 3 and
4 of the notice of application are granted.
____________________
JP DAFFUE, AJ
On behalf of Plaintiff:
Adv. CD Pienaar Instructed by:
Lovius Block BLOEMFONTEIN
On behalf of Defendant:
Adv. PU Fischer SC
Instructed by:
Moroka Attorneys
BLOEMFONTEIN