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2024
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[2024] ZALMPPHC 79
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National Community Radio Forum v Member of the Executive Council for the Department of Education Limpopo and Another (3247/2020) [2024] ZALMPPHC 79 (31 July 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:3247/2020
In the matter between:
NATIONAL COMMUNITY
RADIO FORUM
APPLICANT
And
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF
EDUCATION, LIMPOPO
1
ST
RESPONDENT
N P
MASETLA
2
ND
RESPONDENT
JUDGMENT
MONENE
AJ
[1] Them in the morality
and religious realm that hold up erring as human, hold out further
that continuing in error is diabolical
and go on to call for them
that erred to cure their errors or sins, be it per confessionals
and/or per prayer and/or per restitution
of them that fell victim to
the errors.
[2] In the legal drafting
minefield of preparing pleadings for litigation, Uniform rule 28 is
in general a medium through which
errors per commission or omission
are by consent between litigants or, subject to the prevention of
unmitigable prejudice, cured
by courts.
[3] How far in correcting
a drafting sin an amendment of pleadings can go and whether the
respondents are prejudiced by an intended
amendment mooted by the
applicant in casu are the key questions for determination in this
interlocutory application where, post
the institution of action
proceedings by the applicant as plaintiff in the main action and
after the first respondent as first
defendant therein had filed his
plea, an amendment application is opposed.
[4] The parameters within
which this application plays out up to determination are set by
Uniform rule 28 which reads, in part,
as follows:
“
28
Amendment of Pleadings and Documents
(1)
Any party desiring to amend a pleading or
document other than a sworn statement, filed in connection with any
proceedings, shall
notify all other parties of his intention to amend
shall furnish particulars of the amendment…
(3) An objection to a
proposed amendment shall clearly and concisely state the grounds upon
which the objection is founded.
(4) 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…
(8)
Any party affected by an amendment may, within
15 days after the amendment has been effected or within such other
period as the
court may determine, make any consequential adjustment
to the documents filed by him, and may also take the steps
contemplated
in rules and 30.
(9)
A party giving notice of amendment in terms of
subrule 1 shall, unless the curt otherwise directs, be liable for the
costs thereby
occasioned to any other party.
(10) The court may,
notwithstanding anything to the contrary in this rule, at any stage
before judgement grant leave to amend any
pleading or document on
such other terms as to costs or other matter as it deems it fit.”
[5]
Giving shape to the rule 28 field operation, at least in the context
of this application as it stands in the papers before this
court, is
the apex court of this land in
Affordable
Medicines Trust and Others v Minister of Health and Others 2006(3) SA
247 (CC)(“Affordable Medicines”)
which
at paragraph 9 distilled the key principles attendant to granting or
denying an amendment of pleadings to be the following:
“
the
practical rule that emerges…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 the pleading which is sought
to amend
was filed.”
[6] In
my view, while many other courts have reflected elegantly and
consistent with the Constitutional Court in Affordable Medicines,
no
further and better clarity is provided better than as per Reddi AJ
who, referring approvingly to para 35 of
Dreyer
v Metsimaholo Local Municipality(5899/2017)[2021] ZAFSHC 186(23
august 2021)
, at paragraph 13 of
Nedbank Limited v Ouderajh Haresh(Case
number 11969/2015)Kwazulu-Natal Local Division, Durban(“Nedbank
Limited”)
stated as follows:
“
In
granting an amendment, the fundamental goal is ‘to obtain a
proper ventilation of the dispute between the parties, to determine
the real issues between them so that justice may be done.’
However, as was stated in Commercial Union Assurance Co Ltd v
Waymark
NO 1995(2) SA 73(Tk) at 77, the ultimate decision of whether to grant
an amendment is an issue at the discretion of a judicial
officer,
which discretion must be exercised wisely after deliberating on all
relevant legal and factual considerations.”
BRIEF FACTUAL
BACKGROUND AND THE PARTIES’ KEY STANDPOINTS ON THE APPLICATION
[7] On 3 June 2020 the
applicant issued combined summons against the first respondent, then
as the only defendant, in the main suing
the first respondent for
R6 000 000.00 arising out of contract in which contract the
plaintiff averred that the second
respondent had, as an employee of
the first respondent, represented the first respondent.
[8] The first respondent,
as then the only defendant, filed a plea to the applicant’s
particulars of claim which for some
unfathomable reason is titled as
an amended plea. The plea denied that the applicant had rendered any
services pursuant to a contract
between the parties as well as
denying that the second respondent had any authority to bind the
first respondent contractually.
I hasten to state that the lack of
clarity as to whether there was an initial plea which was
subsequently amended has no relevance
nor bearing on the
determinations to be made in this application.
[9] Realizing what it
considered to be a drafting and pleading error in its case, the
plaintiff successfully applied for the joinder
of the second
respondent as a second defendant in its action. The joinder
application had proceeded unopposed.
[10] After the successful
joinder application, the applicant proceeded to, on 3 March 2023,
give notice of its intention to amend
its particulars of claim
ostensibly occasioned by the joinder. The proposed amendment
effectively amounted to redrafted particulars
of claim as it was not
just a few paragraphs, or few pages sought to be visited with
changes.
[11] While the second
respondent failed to enter an appearance to oppose the amendment much
like his attitude to the earlier joinder
application, the first
respondent took issue with the amendment and filed, on 06 April 2023,
a notice of objection to the notice
to amend in terms of rule 28(3).
[12] The applicant
thereupon, in terms of rule 28(4) filed a substantive application to
amend in line with its notice to amend,
to which the first respondent
countered with an answering affidavit in opposition.
[13] The matter then
appeared before this court on special allocation for determination of
the rule 28 amendment application with
both parties having filed
heads of argument the contents of which, like oral submissions made
before me, are factored into this
judgement.
The
applicant’s key submissions in brief
[14] As I understand the
case made by the applicant before me it is the following:
14.1 It had at joinder
application already informed the first respondent that the joinder
would necessitate an amendment.
14.2 The amendment only
related to a claim against the joined second respondent.
14.3 The original claim
and the second claim against the second respondent arose from the
same facts and would call for the needless
and avoidable leading of
the same evidence before different courts if the amendment is
granted.
14.4 The amendment as
proposed did not bring to bear the introduction of a new cause of
action.
14.5 The amendment merely
seeks to bring in the alternative claim of undue enrichment brought
by the plaintiff.
14.6 The amendment will
ensure that the
lis
between the parties is properly ventilated
before court in a manner that ensures that all the voices are heard
on the same issues.
[15] On the other hand
the first respondent opposes the application on the following
grounds:
15.1 That the intended
amendment went beyond bringing a claim against the second respondent
in that it introduced new causes of
action based on new averments
against the first respondent.
15.2 That the intended
amendments at most are prejudicial to the first and at least could
potentially be prejudicial.
[16] My reading of the
lis
before me reveals that the parties agree that the second
respondent is or at least at the time of the conclusion of the
contract
was in the employ of the first respondent. Where they differ
is whether the amendments sought to be made by the applicant are all
arising from or occasioned by the joinder of the second respondent as
second defendant in the action, whether the amendments attach
only to
the second respondent, whether the amendments are or have in them new
factual averments which predicate new causes of action
against the
first respondent, whether the amendments are prejudicial to the first
respondent and whether such prejudice, if it
obtains, is capable of
being mitigated with a costs order or any other order and whether the
amendment being granted or refused
will lead to an injustice.
[17] I
do not understand Uniform rule 28 to be providing that amendments
need not introduce new causes of action, nor do I as matter
of fact
and law, understand the rule to in anyway be circumscribing the
extent to which an amendment can materially go. If it was
so the rule
would be explicit in that regard and unequivocal as to what types of
amendments are allowed and which ones are outlawed.
I understand the
rule from both its text and from the
Affordable
Medicines
and
Nedbank
Limited
exposition thereof to be an
enabling rule generally permissive of
any
amendment to pleadings and documents, save for
affidavits, for as long as such amendment does not lead to an
unmitigable prejudice.
In that regard therefore the question of
whether the amendment sought by an applicant introduces a new or new
causes of action
or new averments against whomever is of itself, that
is, outside the prejudice determination sphere, most unhelpful.
[18] However, I still
deem it meet, if it be only for completion’s sake, that I
determine whether factually the amendments
sought in casu introduce a
new cause or new causes of action. They do not and to that I shall
come shortly.
[19] Beyond the meagre
and threadbare two points taken, in a fluffing manner I must
interpose, by the first respondent in his answering
affidavit and
reflected on in paragraph 15 supra, I was addressed by counsel for
the respondent in both his Heads of Argument and
submissions in court
that the following new averments in the intended amendment are
tributaries leading into an allegedly prejudicially
precipitous river
of “new ideas and new causes of action”:
19.1 The new averment
about the first respondent having appointed teachers and arranged
meetings allegedly pursuant to the contract
signed by the second
respondent which contract the first respondent pleaded was
unenforceable.
19.2 The averment that
the first respondent had requested the applicant to attend to SBD
forms and tax matters as if to suggest
recognition of the contract
signed by the second respondent allegedly on behalf of the first
respondent.
19.3 The averment that
the applicant had previously delivered services to the first
respondent like the ones captured in the disputed
contract.
19.4 That the applicant
had not “explained” why these averments had not been made
in the initial particulars of claim.
19.5 That because the
amendments sought to, unlike in the initial particulars of claim,
hold the first respondent vicariously liable
for the conduct of the
second respondent, they are sought with mala fides and are thus
prejudicial. The mala fides arising from
the fact that, it was
argued, vicarious liability was introduced to scupper or defeat or
dilute the point of lack of authority
of the second respondent to
represent the first respondent already pleaded in the first
respondent’s “amended plea”.
Further mala fide
intentions were said to be the unexplained possibility of the
applicant being desirous of sidestepping possible
prescription
points.
[20] I am not persuaded
that any of the averments in the amendment papers or submissions
arising from them referred to immediately
supra introduce a new cause
of action at all. The cause of action around which all the averments
about previous services rendered,
about meetings of teachers and the
completion of SBD forms and Receiver of Revenue forms swirl is the
original cause of action
involving or centered around damages arising
from an alleged contractual breach by the first respondent to the
prejudice of the
applicant.
[21] I also fail to find
anything in the implicated rule which calls for an amendment to only
be permitted if there is a good reason
supplied for any earlier
omission or for any other drafting sin or error which gave birth to
the need to amend. That, in my view,
is simply not the law.
[22] That a particular
legal device or defense or legal approach or new point, which is
ordinarily legally available in litigation
will, because of an
intended amendment, become available to an opponent and/or become
sharper and/or become stunted, cannot by
any stretch of imagination,
be deemed to be proof of mala fides which negate an amendment. It
remains available to any party to
legally fight out all points taken
against them at pleading and at trial. In this regard, it remains
available to the first respondent
to plead to the vicarious liability
point and to the new averments as well as to take any prescription
point that the first respondent
deciphers to be available. The
intended amendment is not a bar to the employ of any legal strategy
or legal point by the first
respondent at this stage. Rule 28(8)
grants the first respondent latitude to make any adjustments
consequential to the amendment
sought by the applicant.
[23] This then leaves
remaining the only question that is key in casu, which is whether the
amendments sought to be made are prejudicial
to the first respondent
and if so, whether a costs order or any other order may ameliorate
that prejudice. Married thereto is the
question of what prejudice
exactly has been alleged and proven in casu.
[24] In the context of
this matter prejudice means hurdles, hardships or impediments that
could, because of the amendment being
visited upon the first
respondent as a litigant in the action, frustrate the first
respondent in prosecuting its case.
[25] According to the
first respondent it is for the applicant who must prove to this court
that the amendment it seeks will not
prejudice the first respondent.
The first respondent then falls through with an argument that the
applicant has failed to prove
that the first respondent will not
suffer any prejudice.
[26] In my view, while
the applicant has a bit to say about whether there is a likelihood of
prejudice or not, an applicant can
most times do no more than state
that there is no prejudice that will befall a respondent to an
amendment of pleadings or further
that a costs order can cure any
semblance of prejudice. What must happen is that he who alleges there
to be prejudice or the potential
thereof must go the extra mile and
prove the nature, extent and impact thereof. He must demonstrate how
he will be prejudiced and
not merely pay lip service to that question
by glibly throwing in the word “prejudice”.
[27] But the first
respondent
in casu
has not expatiated on any prejudice, that
is, beyond blandly alleging it. All the first respondent has done is
to repeatedly allege
that the amendment will result in prejudice
without remotely indicating the nature and form of the prejudice as
well as the extent
of such prejudice. Mere allegations without
evidence giving the allegations the stature of proven facts have
never been sufficient
to prove any case before a court of law and
will not so become in this matter.
[28] As alluded to above,
the first respondent has every right and opportunity to plead to the
amended particulars and given the
fact that the stage of litigation
in this matter is at its most embryonic pleading stage, very little
prejudice may exist. Whereas
a pleading can be effected at any time
before judgement, it stands to reason that the later in the
litigation proceedings an amendment
is sought the less likely is
there to be condonable prejudice and further that amendments, as in
casu, made much earlier in the
proceedings, necessitate far less
drafting readjustments on litigants visited upon by such amendments.
[29] Absent any proven
prejudice or demonstrable potential prejudice therefore, it becomes
unnecessary to determine the employability
of ways of ameliorating
prejudice. It also consequently means that there is no impediment on
the way of an application for such
an amendment being granted.
Indeed, as was argued on behalf of the applicant, an essential and
key ground for the refusal of an
amendment application is prejudice
to the party being served with an amendment. An amendment being a
cure for a consultation and/or
drafting error or sin should not be
refused merely as some form of gamesmanship red carding for some
mistake or neglect on a party
seeking an amendment’s part as if
drafting pleadings is tantamount to some chess or ludo game where a
touch is an irreversible
move.
[30] In all the above
premises I am persuaded that a case for the amendment of the
particulars of claim in this matter has been
made and further that
the resistance or objection thereto is without merit.
[31] Resultantly, I make
the following order:
31.1 The application
succeeds.
31.2 The applicant as
plaintiff in the action is granted leave to amend its particulars of
claim in terms of the plaintiff’s
notice of intention to amend
dated 3 March 2023.
31.3 The
applicant/plaintiff is ordered to pay the costs of this application
inclusive of counsel’s costs on scale B.
MALOSE.S. MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
17 May 2024
Judgement
delivered on
:
31 July 2024
For
the Plaintiff
:
Adv. Sibiya
:
Instructed by Dawid Maree Attorneys
:
Tel: - 015 280 0168/9
:
Email:
lufuno@dawid.co.za
For
the Defendant
:
Adv. LGP Ledwaba
:
Instructed by State Attorney Polokwane
:
REF: 608/20/RM
:
Email:
TMasete@justice.gov.za