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[2024] ZAECQBHC 36
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ABSA Bank Limted v Ursula Felicity Rezant No (2451/2020) [2024] ZAECQBHC 36 (23 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
Case No: 2451/2020
In the matter between:
ABSA
BANK
LIMITED
Plaintiff/Respondent
and
URSULA FELICITY REZANT
NO.
(In her capacity as the
Executor of the joint deceased
estate of
JOHANNES
BASIL REZANT
and surviving
spouse
URSULA FELICITY
REZANT
)
Defendant/Applicant
JUDGMENT
Zilwa AJ
Introduction
[1]
The
Plaintiff instituted action against the Defendant on 14 October 2020.
Pleadings eventually closed and the parties convened and
held a
pre-trial conference in May 2022. Trial bundles were prepared, and
the matter was set down for trial.
[2]
On
13 February 2023 a notice of amendment, which was similar to the one
on which this application is based, was delivered by the
Defendant
seeking to introduce a special plea. On 21 February 2023 a notice of
objection to the proposed amendment was delivered.
No further action
was taken by the Defendant insofar as the amendment that was objected
to.
[3]
It
appears from the record that the trial in this matter was initially
set down for 7 March 2023 and was postponed to 14 September
2023. On
30 August 2023 a second notice of amendment was delivered and it was
objected to on 31 August 2023. On the eve of the
hearing, 13
September 2023 at 15H21, the application as envisaged in Rule 28(4)
of the Uniform rules was launched.
[4]
The
matter could not proceed on 14 September 2023 as it was crowded out
due to shortage of judges on the day and was postponed to
February
2024.
[5]
On
29 September 2023 the Plaintiff delivered its opposing affidavit and
the replying affidavit was due on 20 October 2023. After
the expiry
of the
dies,
the Plaintiff prepared its heads of argument and
applied for a date of hearing on 27 October 2023. The Registrar
allocated a date
of hearing in the opposed motion court and a notice
of set down was delivered by the Defendant on 31 October 2023.
[6]
The
Defendant’s replying affidavit was only delivered on 24
November 2023 and it was not accompanied by any application for
condonation.
[7]
The
Plaintiff opposes the proposed amendment on the following grounds:
7.1
It
alleges that no case has been made out for the indulgence sought;
7.2
It
further alleges that the application is not
bona fide
or aimed
at ensuring that the true issues are dealt with by the Court but
rather a delay;
7.3
It
alleges further that it will be prejudiced in preparation of the
upcoming trial, should the proposed amendment (which does not
comply
with the Rules and will render the pleadings expiable as vague and
embarrassing / not disclosing an action) be allowed.
[8]
Although
I sympathise with the Plaintiff concerning the general dilatoriness
of the Defendant in this case I can only express the
hope that both
parties will expedite matters in future.
[9]
As
alluded to above the Defendant did not file any condonation
application for her late delivery of the replying affidavit. All
what
was given is the ‘so-called’ explanation in paragraphs 1
and 2 of the heads of argument. It is apposite to quote
verbatim
these paragraphs:
‘
[1]
I
first beg pardon of this Honourable Court for filing these Heads
late. I refused to do any further work on the matter as I was
not
place on funds in respect of the services I had rendered before. I
was phoned by my instructing attorneys on 20
th
November 2023 and advised that the applicant will pay on 21
st
November 2023. It was only after my instructing attorneys were placed
on funds that I accepted the brief to prepare my heads.
[2]
Upon
perusal of my brief enclosures, I realized that the reply was also
due. I thereafter consulted with the applicant and proceeded
with the
settlement of the reply and prepared my heads. I sincerely apologize
for the delays caused on the matter. I beg leave
of this Honourable
Court to file both these heads and the reply. I submit that the
applicant enjoys good prospects of success on
the matter considering
the principles applicable in matters of this nature.’
[10]
Mr
Wessels
took a point that there was no substantive application
for condonation brought and that the replying affidavit should not be
accepted.
Mr Nzuzo,
appearing on behalf of the Defendant, was
adamant that the explanation given both in the replying affidavit and
heads of argument
was sufficient so as to constitute an application
for condonation. There is no need, so his argument goes, for a
substantive application
on notice, supported by an affidavit, to be
brought. He further argued that it is sufficient for an application
for condonation
to be made from the bar as far as he knows.
[11]
In
the midst of the argument, there was a electricity loadshedding
interruption and I directed the parties to consider during the
adjournment the case of
Watloo
Meat and Chicken SA (Pty) Ltd v Silvy Luis (Pty) Ltd
and
Others
[1]
at
paragraphs 35 and 36 thereof.
[12]
After
the adjournment
Mr Nzuzo
was still adamant that there was no
need for a substantive application as envisaged in Rule 27(3) of the
Uniform rules. The relevant
paragraphs in
Watloo
read as
follows:
‘
[35]
Even
though I am of the view that the defects in the notice of motion can
be condoned, the applicant still has a problem. In view
of the fact
that there is no formal application for condonation, it being based
only on the request contained in the replying affidavit
whose very
legitimacy is in issue, and also that the correspondence relied on by
the applicant appears only in the same replying
affidavit, there is
no basis on which Mr Vivian could have argued on behalf of the
applicant for condonation. Moreover, Mr Vivian
at no stage conceded
that the procedure adopted by the applicant was defective. How, then,
can there be condonation?
[36]
I
have already stated that,
when I raised that aspect with both
counsel, they were in agreement that it was appropriate for either of
them to address the court
on the basis of what is contained in the
replying affidavit. For the reasons I have already given, I disagree
with them.
’ (my underlining)
[13]
It
is clear from the above extract, which
Mr Nzuzo
failed to
appreciate, that the Defendant’s failure to deliver a
substantive application and argue on what is contained in
the
replying affidavit was, with respect, an unfortunate lack of
appreciation of the procedure. Ratiocinatively speaking, I could
not
have had regard to the contents of the affidavit until condonation
for its late delivery has been granted. In the circumstances,
I find
that there has been no proper attempt to persuade me to grant
condonation. Put it differently, there is no formal application
for
condonation and therefore I am unable to exercise my discretion in a
vacuum
as there no facts before me, under oath, upon which I
can exercise it. In the result I refuse to accept the replying
affidavit.
[14]
In
the case of
Fourie
v Honeyborne
[2]
, Raulinga J had an occasion to put this point beyond any doubt when
he stated the following:
‘
At the hearing of
the application, the applicant attempted to sneak in a supplementary
affidavit in order to cure the defect in
the founding affidavit.
This
the applicant did without condonation and an indulgence in terms of
Rule 6(5)(e) of the Uniform Rules of Court. It is trite
that
observance of the Rules of Court is not a mere formality
- Watloo
Meat and Chicken SA (Pty) Ltd v Silvy Luis (Pty) Ltd and Others
[2008] ZAGPHC 136
;
2008
(5) SA 461
(T) at 472G-H.
I therefore refuse to admit the
affidavit for non-compliance
.’ (My emphasis)
[15]
Mr
Nzuzo
further
referred this court to two authorities in support of his argument,
namely,
Minister
of Safety and Security v Mzukisi Tyali
[3]
and Kubupay (Pty) Ltd v Mayibuye Transport Corporation
[4]
.
[16]
In
the case of
Tyali (supra),
Hartle J was simply drawing a
distinction between an application brought on notice and the one
brought on notice of motion. My sister
was simply emphasizing that
not every application brought on notice should be supported by an
affidavit and she was referring to
a Rule 30A application that was
serving before her. I am completely in agreement with her sentiments
in this regard.
[17]
In
the case of
Kubupay (supra),
Collett AJ was faced with an
application for striking out as envisaged in Rule 23(2) of the
Uniform rules. Her focus was on the
applicability of Rule 6(5) in
Rule 6(11) applications and her finding was that Rule 6(5) is not
applicable. She was echoing the
finding in
Tyali,
which is a
trite legal position.
[18]
In
a nutshell both authorities relied upon by
Mr Nzuzo
are, with
respect, not addressing the issue at hand in these proceedings. There
is no contention nor argument that was ever made
during argument that
the Defendant should have brought an application on
notice of
motion
and in compliance with Rule 6(5). All what the Defendant
was required to do was to bring an application in terms of Rule 27 of
the Uniform rules which provides as follows:
‘
(1)
In
the absence of agreement between the parties,
the court may upon
application on notice and on good cause shown
, make an order
extending or abridging any time prescribed by these rules or by an
order of court or fixed by an order extending
or abridging any time
for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such
terms as to it seems
meet.
(2)
Any
such extension may be ordered although the application therefor is
not made until after expiry of the time prescribed or fixed,
and the
court ordering any such extension may make such order as to it seems
meet as to the recalling, varying or cancelling of
the results of the
expiry of any time so prescribed or fixed, whether such results flow
from the terms of any order or from these
rules.
(3)
The
court may,
on good cause shown, condone any non-compliance with
these rules
.’ (my underlining)
[19]
It
is clear that Rule 27 envisages an application on
notice
and
not on
notice of motion
and such application should disclose a
good cause. It is on the basis of the good cause shown that the Court
exercises its discretion
in favour of that particular Applicant.
Logic dictates that there is no other way of showing good cause other
than bringing facts
under oath before Court by deposing to an
affidavit. It is therefore without any doubt that Rule 27 envisages
an application brought
on notice and supported by an affidavit.
[20]
Even
the wording in Rule 6(11) does not discard deposition to an
affidavit.
[5]
It makes it clear
that an affidavit can be deposed to in support of an application
as
the case may require.
[21]
Indeed
not every application as envisaged in Rule 6(11), brought on notice,
needs to be supported by an affidavit. In
Chelsea
Estates and Contractors CC v Speed-O-Rama
[6]
,
Mullins J concluded that:
‘
there is no doubt
that this is an interlocutory application. Furthermore in many
interlocutory applications there is no need to
file affidavits, and
certainly the provisions of Rule 6 (5)(f) do not apply to such
applications.’
[22]
I
turn now to the merits of the application, namely whether the
amendment should be granted. The principles applicable to this issue
have been set out in numerous cases. In
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[7]
Corbett
CJ stated at 565G:
'Although the decision
whether to grant or refuse an application to amend a
pleading rests in the discretion of the Court,
this discretion must
be exercised with due regard to certain basic principles.'
[23]
The
following statement by Watermeyer J, as he then was, in
Moolman
v Estate Moolman and Another
[8]
has been accepted and followed as reflecting our jurisprudence:
'The question of
amendment of pleadings has been considered in a number of English
cases. See for example:
Tildesley v Harper
(10 ChD
393)
;
Steward v North Met Tramways Co
(16 QBD 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 it is
sought to
amend was filed.'
[24]
In
Rosenberg
v Bitcom
[9]
,
Greenberg J, as he then was, stated:
'Although it has been
stated that the granting of the 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
.' (my underlining)
[25]
In
Zarug
v Parvathie NO
[10]
,
Henochsberg
J held that:
'An amendment cannot
however be had for the mere asking. Some explanation must be offered
as to why the amendment is required and
if the application for
amendment is not timeously made, some reasonably satisfactory
account must be given for the delay.'
[26]
In
Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd
and Another
[11]
,
Caney J had the following to say:
'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 opponent by an
amendment which has no
foundation. He cannot 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.'
[27]
And
at 639B:
'The mere loss of the
opportunity of gaining time is not in law prejudice or
injustice. Where there is a real doubt whether
or not prejudice or
injustice will be caused to the defendant if the amendment is
allowed, it should be refused,
but it should not be refused merely
in order to punish the plaintiff for his neglect
.' (my
underlining)
[28]
And
at 642H:
'In my judgment, if a
litigant has delayed in bringing forward his amendment, this in
itself, there being no prejudice to his opponent
not remediable
in the manner I have indicated, is no ground for refusing the
amendment.'
[29]
In
Benjamin
v Sobac South African Building and Construction (Pty) Ltd
[12]
,
Selikowitz J stated:
'Where a proposed
amendment will not contribute to the real issues between the parties
being settled by the Court, it is, I think,
clear that an amendment
ought not be granted. To grant such amendment will simply prolong and
complicate the proceedings for
all concerned and must, in particular,
cause prejudice to the opposing party who will have to devote his
energy and expend both
time and money in dealing with an issue, the
resolution of which may satisfy the needs (or curiosity) of the party
promoting it,
but which will not contribute towards the adjudication
of the genuine dispute between the parties. Mr
Seligson
urged
me to adopt this guideline for the exercise of my discretion here
where the applicant applies to amend his cause of
action. It is, in
my view, necessary in this application that I consider whether or not
the claim for relief under s 32(2) is competent
before I grant the
amendment. If the claim is, in the circumstances of this case, not in
law a viable claim I would be doing not
only the respondent but also
the applicant an injustice by granting the amendment.'
[30] As
alluded to above the issue of granting or refusing an amendment is at
the Court’s discretion
which should be exercised judiciously,
it is important to highlight the impact of granting or refusing the
contemplated amendment.
The Defendant is seeking to introduce a
special plea which, if successful, will exonerate her in the sense
that the debt owed in
respect of the property in question will be
settled. On the other hand, if the special plea is dismissed, she
will remain liable
for the debt which is being sued for by the
Plaintiff and that may ultimately result in her losing the property
in question.
[31] I
am alive to the Plaintiff’s contention that the amendment
sought will render the plea excipiable
as it will be vague and
embarrassing and will not be disclosing any defence. I have
considered this contention but I am unable
to reach such finding as
that is the debate that can be better presented during the hearing of
the exception. In any event, even
if I would accept such possibility,
that on its own does not prevent me from allowing amendment.
[13]
[32] Cumulatively,
I also weighed the repercussions of refusing the amendment as against
granting it and
I am inclined to grant it as that would be in the
interest of justice to do so and that would allow both parties to
fully ventilate
all the issues. Interest of justice dictates that the
amendment should be granted notwithstanding the clumsy and cavalier
manner
in which the Defendant’s legal representatives have
handled the matter. Unfortunately, I do not find any basis to
penalize
the Defendant for the less than perfect work done by those
representing her.
Costs
[33] Inasmuch
as the Defendant has been successful in this application with all the
shortcomings as highlighted
above, I do not find any basis to mulct
the Plaintiff with costs moreso that the Defendant is seeking an
indulgence. A proper order
would be for each party to pay its own
costs.
[34] In
the result the following order shall issue:
1.
The
Defendant is hereby granted leave to amend her plea as per the notice
dated 29 August 2023 in terms of Rule 28 of the Uniform
rules.
2.
That
each party shall pay its own costs.
H ZILWA
JUDGE OF THE HIGH
COURT (ACTING)
Appearances:
For
Plaintiff:
Adv LN Wessels
Instructed by:
Sandenberg Nel Haggard Attorneys, Bellville c/o McWilliams &
Elliot Inc., Gqeberha
For Defendant:
Adv S Nzuzo
Instructed by:
Mente Faltein Attorneys, Gqeberha
Date Heard:
30 November 2023
Date Delivered:
23 January 2024
[1]
Watloo
Meat
and
Chicken
SA
(Pty) Ltd v Silvy Luis (Pty) Ltd and Others
[2008] ZAGPHC 136
;
2008
(5) SA 461
(T)
at
[35] and [36]
[2]
Fourie
v Honeyborne
2017
JDR 1332 (GP) at [8]
[3]
Minister
of Safety and Security v Mzukisi Tyali
2012
JDR 1112 (ECM)
[4]
Kubupay
(Pty) Ltd v Mayibuye Transport Corporation
2023
JDR 2927 (ECGEL)
[5]
Notwithstanding the aforegoing subrules,
interlocutory
and other applications incidental to pending proceedings may be
brought on notice supported by such affidavits as
the case may
require
and set down at a time assigned by the registrar or as directed by a
judge. (my underlining)
[6]
Chelsea
Estates and Contractors CC v Speed-O-Rama
1993
(1) SA 198
(SE) at 202C
[7]
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990
(3) SA 547
(A)
[8]
Moolman
v Estate Moolman and Another
1927
CPD 27
at 29
[9]
Rosenberg
v Bitcom
1935
WLD 115
at 117
[10]
Zarug
v Parvathie NO
1962
(3) SA 872 (D)
at
876C
[11]
Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering (Pty)
Ltd and Another
1967
(3) SA 632
(D)
at
641A
[12]
Benjamin
v Sobac South African Building and Construction (Pty) Ltd
1989
(4) SA 940
(C)
at
958B
[13]
See
:
Crawford-Brunt
v Kavnat and Another
1967
(4) SA 308
(C) at 310G, where Tebbut AJ (as he then was) held that:
‘
If
the pleading would appear to be possibly open to exception or even
if the court is of opinion that the question of whether
or not the
pleading is excipiable is arguable,
it
would seem to be the more correct course to allow the amendment
.’