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[2009] ZAGPJHC 82
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City of Johannesburg v Pengelly (587/2007) [2009] ZAGPJHC 82 (31 August 2009)
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: 587/2007
DATE
: 2009-08-31
In the matter between
CITY OF JOHANNESBURG Plaintiff
and
MARGARET JENNIFER PENGELLY Defendant
_________________________________________________________
J U D G M E N T
_________________________________________________________
WILLIS J
:
This is an application for an amendment. This matter has had a
troubled history. On the 18 November 2008 my brother
Blieden, J upheld the defendant’s exception and directed that
the plaintiff’s particulars of claim be set aside as
vague and
embarrassing and gave the plaintiff 15 days within which to amend its
particulars of claim. That did not occur. There
then was an
application, it would seem, for a dismissal of the action. The
matter came before Geldenhuys, J who ordered the respondent,
being
the City of Johannesburg, to pay the costs of the dismissal
application on an opposed scale.
The matter came before a Marais, J on the 11 August 2009
and was postponed
sine die
with costs reserved. The notice of
intention to amend seeks to amend certain specific paragraphs in the
original particulars of
claim. The counsel for the defendant has
taken the point that it would seem from Blieden, J’s order that
wholly amended
particulars of claim should be filed.
There seems merit in the point. Nevertheless, there are more
substantive objections, which have been taken by counsel for the
defendant. The plaintiff purports to rely on certain statutes, which
have come into operation namely the
Local Government:
Municipal Property Rates Act No. 6 of 2004
as well as
the
Local Government Municipal Systems Act No. 32 of 2000
.
On the other hand, the claims stretch for the period from June 1997
up to and including December 2006. There is no
breakdown as to
when the specific amounts accrued although it must in fairness be
noted that the plaintiff has, in the notice of
intention to amend,
given more particularity as to the breakdown in terms of refuge
removal, sewage, rates assessments, sundries
and VAT. Nevertheless,
in my opinion, the objection is well founded.
Prima facie
at
least some of these amounts may well have prescribed if they are
being claimed from 1997. There should be a breakdown in order
that
the defendant can address this. Counsel for the plaintiff said that
there are certain statutory prohibitions on prescription.
That may
well be, but then in my respectful opinion the plaintiff must set out
why the claims or the portions of the claims that
are more than three
years old have not prescribed and as set out the sections in the
relevant statute upon, which it relies.
In other words it does seem to me that the defendant has objected on
a reasonable basis that the amended particulars of claim
remain in
still far too vague and embarrassing a form for the defendant to be
able to plead properly thereto.
I can see no reason why the reserved costs of the postponement on
the 11 August should not be part of the costs of today.
The
reason for this is that that matter came before court on
11 August 2009 relating to this very application. It also
seems to me that, having validly objected to the amendment, or the
notice of intention to amend, the defendant is entitled to the
costs
that relates thereto. Accordingly the following order is made:
The plaintiff’s notice of intention to amend is set aside (in
any other words, the plaintiff may not file amended particulars
in
the form set out in that notice of intention to amend);
The plaintiff is to may the costs of this particular application,
which costs are to include the costs reserved on 11 August 2009.
The plaintiff is nevertheless given a further 10 days in which to
file amended particulars of claim.