REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 12002/16
In the matter between:
MEHDI BENCHERKI PLAINTIFF/APPLICANT
and
ERICSSON SUB -SAHARAN AFRICA (PTY) LTD DEFENDANT/RESPONDENT
In re: Application for Amendment
JUDGMENT
Manoim J
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
…… .. …13/01/2025 ……
SIGNATURE DATE
2
Introduction
[1] In this judgment I deal with three separate opposed applications. The plaintiff
brings two of them – an application to amend his particulars of claim and a
second , an application to lift the bar so as to permit him to file a replication . The
defendant opposes both applications and in turn has brought an application to
dismiss the plaintiff’s claim.
[2] Although these are separate applications the factual matrix that underpins each
one is similar. They are mutually destructive as a decision in favour of the
plaintiff would mean I reject the application to dismiss whilst, vice versa, a
decision to uphold t he dismissal application requires a rejection of the
amendment application and the removal of the bar on the replication. Of course,
this need not be so; the rejection of an amendment would not ordinarily mean
the matter could not still continue to tri al. But the plaintiff has made it clear that
without the amendment and removal of the bar he cannot proceed with the
action.
[3] Before I consider the respective applications, it is necessary for me to outline
as succinctly as possible the lengthy procedural history that has preceded the
two applications.
[4] Twelve or fourteen years ago , the plaintiff, a Moroccan citizen now resident in
Dubai , purportedly entered into an oral agreement in London , with the
subsidiary of a Swedish multinational , Ericsson , concerning services he was to
provide it with in Angola.
3
[5] The reason this court has jurisdiction , despite this set of facts , is that the
subsidiary , Ericsson Sub-Saharan Africa (Pty) Ltd , the defendant, has it s
principal place of business in South Africa . The defendant does not contest this
court’s jurisdiction.
[6] The plaintiff describes himself as a business development consultant who
specialises in telecommun ications. The defendant company is a subsidiary of
the well -known Eri csson group , which manufactures a wide range of
telecommunications equipment which it sells worldwide.
[7] In his particulars of claim (prior to the amendment he seeks to make now) the
plaintiff alleged that he had entered into an oral agreement with a certain
Magnus M uchunguzi , then employed by the second defendant , in London , on
22 November 2014 , to perform certain services to win business from three
telecommunications companies operating in Angola , as well as with the
Angolan Government. Mchunguzi, he alleges , was the Defendant's Vice -
President and Managing Director; Major Accounts for South Africa and Sub -
Saharan Markets .
[8] In a second claim he alleges he was retained at the same time to act as the
defendant’s intermediary in Angola .
[9] This judgment does not deal with the merits of his claim. What I have to decide
are the applications brought by the respective litigants.
Procedural history.
4
[10] The plaintiff’s action was brought to this court in April 2016. But it has had a
troubled history since then. The plaintiff has sought to amend his particulars
several times in the face of exceptions raised by the defendant. The defendant
alleges that there have been several attempts by the plaintiff to amend his
particulars. Only one of the defendant’s objections was opposed by the plaintiff
who was unsucce ssful. The current particulars are nevertheless the product of
an amendment. The defendant eventually pleaded in November 2019. In terms
of the Uniform Rules the plaintiff should have filed his replication within fifteen
days . He did not do s o timeously , and this explains why he is now under bar.
[11] The defendant requested that the matter proceed in the Commercial Court. This
was agreed to. What happened next was that the defendant brought an
application to dismiss the claim. This application was heard in April 2024. The
basis of the defendant’s case was that the proceedings were vexatious and an
abuse of process. Unterhalter J , who heard the matter , did not grant the
application , holding that the threshold for dismissal in our law on the grounds
that an a ction was vexatious and an abuse of proces s, was whether the
proceedings were unsustainable as a certainty , rather than as a probability.
Unterhalter J concluded that he could not conclude that the test for certainty
had been met. Nevertheless, he was not unsympathetic to the defendants’
argument given the history of delays in the matter and so rather than dismissing
the application he gave an unusual order which is now the subject of much
argument in the present matter.1 The order states:
1 The learned judge had discussed the proposed order with the parties who had both agreed to its
terms.
5
“(i) The action brought under case no 12002/2016 is dismissed
should the plaintiff henceforth engage in any conduct that
unjustifiably delays the case coming to trial .
(ii) If the action is dismissed pursuant to (i) above, the respondent
(plaintiff in the action) shall bear the costs of this application;
including the costs of two counsel.
(iii) If the action is not dismissed pursuant to (i) above, the costs
of this application are reserved for determination by the trial court.
( Emp hasis provided) .
[12] Unterhalter J made it clear that the order was not self -executing. This mea nt
that if the defendant wished to seek dismissal it would have to bring another
application and meet the standard that the plaintiff was responsible for an
unjustifiable delay.
[13] Unterhalter J handed down his decision on 15 March 2024. A date was then
sought from the Deputy Judge President for the matter to be allocate d a trial
date. The matter was set down for hearing for five days from 21 to 25 October
2024. This was an expedited date .
[14] What happened next is at the heart of the current dispute. According to the
plaintiff he had by then become particularly anxious about the way his legal
team – both his attorneys and counsel - were handling his matter . The date of
trial was looming . Although discovery had taken place back in 2020 , his
attorneys delivered a Rule 35(3) notice, and this yielded a further tranche of
documents .
6
[15] A whole series of interactions then took place between the plaintiff and
members of his legal team. The interactions are numerous and show that he
was distressed with their level of preparation whilst they tried to reassure him
that they were on top of issues and would be trial ready. Ultimately the
relationship broke down in mid -September 2024 and the plaintiff briefed a new
legal team. Whether he fired them, or they decided the relationship had broken
down beyond repair is not clear.
[16] The new legal team moved swiftly. The attorney briefed new counsel who
acquainted themselves with the brief . At a pre -trial held on 3 October 2024 they
informed the defendant’s team that they were likel y to file a replication and to
amend the current pleadings. The new pleadings arrived simultaneously . The
replication deals with the pleadings as they are , whilst the amendment raises
new issues. Nevertheless, from the plaintiff’s perspective they go hand in hand ;
the one does not exist in isolation of the ot her.
[17] The defendant then filed a notice of opposition to the amendment. I held a case
management meeting with the parties a week before the trial was meant to
commence. By then it was clear that the trial could only run if the plaintiff gave
up on the amendment. He was not willing to do so. The defendant indicated
that it was not willing to give up its opposition to the amendment and insisted
that the plaintiff bring an application to amend. The defendant also indicated
that it would bring another application to dismiss the claim. I then approved a
timetable which provided for the following:
7
a. The plaintiff and defendant would file their respective witness statements
with the following caveats: the plaintiff ’s were filed on the basis that the
amendment was granted , whilst the defendant filed on the basis that the
pleadings remained as they were.
b. The plaintiff would file an application to amend , and an application to
remove the bar on his replication, whilst the defendant would oppose
both and file a counter application to dismiss. The plaintiff in turn would
oppose the application to dismiss.
[18] Despite the short time period s, both sides filed in time, and I heard both the
applications on 23 October 2024. Both counsel sensibly argued the applications
together. Formally they are distinct but the factual basis of each was largely co -
extensive.
[19] I start by considering the application s to amend and to deliver the replication
late.
The plaintiff’s application s
[20] The plaintiff accepts that it must meet the threshold test set by Unterhalter J –
it must show that the amendment does not unjustifiably delay the trial. That the
trial would be delayed was not in dispute. That the plaintiff was the cause of the
delay also cannot be seriously disputed. The question is whether the plaintiff’s
reason for the delay is unjustifiable. The central contention of the plaintiff is that
the delay is caused by the incompetence of his erstwhile legal team. Only on
the eve of the trial did he realise he needed to get new representation, and the
8
new legal team advised him that he needed both to replicate and to amend his
particulars of claim.
[21] Relevant to the issue of justification is the nature of the replication and the
proposed amendment. I consider this issue first.
[22] The plaintiff’s current pleading , which as I noted earlier, is already the product
of an amendment , has two claims. In terms of the first claim the plaintiff alleges
that he entered into an oral agreement with the defendant which is described
as a business development agreement. In terms of this the plaintiff was tasked
with maintaining and expanding the defendant's market share in Angola.
Specific mentions is made of certain telecommunications pro viders , amongst
them a firm called Movicel. Also mentioned is the Angolan government. The
contract was for three years, commencing on 1 January 2015 and terminating
on 31 December 2017. The remuneration was calculated as $ 4 million per year
as well as a percentage of business gain ed by the plaintiff from any of the
entities mentioned. This fee was to be 5% of the sales arising from the
agreement.
[23] The second claim was for the plaintiff to act as an intermediary to facilitate the
release of funds by the central bank of Angola, the Banco Nacional de Angola
(“BNA”) that were due to Ericsson. The agreement was to run from 2015 to
2017, and Ericsson was to pay him $ 850 000 each year on the first day of the
year.
9
[24] Importantly the plaintiff alleged that he had performed in respect of each of the
agreements, but that Ericsson had , notwithstanding , failed to pay him . The
combined claims amounted to $ 19.6 million.
[25] On 19 November 2019 the defendant filed its plea. In it t he defendant raised
three defences. That no agreement had been concluded, alternatively if there
had been an agreement , Mchunguzi, the person who allegedly entered into it ,
was not authori zed to do so, and further alternatively, if there was an agreement
validly entered into, the plaintiff had not performed in terms of the agreement.
No replication followed in the requisite fifteen -day period. Nor was one signalled
when the dismissal application served before Unterhalter J .
[26] Instead, the replication and the proposed amendment followed shortly after the
plaintiff had appointed his new legal team. It was a comprehensive change – a
new attorney and two new counsel.2 One can assume that these developments
were made acting on their advice to the plaintiff.
[27] I deal with the replication first. It was only filed in October 2024 – nearly five
years after the replication should have been filed in terms of the Uniform rules.
The replication is responsive to the defendant’s alternative allegation that
Mchunguz i was not authorized to enter into a contract with him . In the
replication the plaintiff pleads that M chunguzi was authorize d, but in the
alternative , if he was not, then the defendant is estopped from asserting his lack
of authority because two senior executive s of Ericsson , a Mr Lars Linden, and
2 The new attorney placed himself on record on the 20 September 2024 .
10
a Mr Jejdling , were aware of the agreements , and that neither had informed the
plaintiff that Mchunguzi was not authorised.
[28] The replication still deals with the pleadings as they stand. But the amendment
reconstructs the case on a different basis.
Proposed amendment
[29] Under the current particulars the agreement was concluded on 22 November
2014 in London to regulate a future relationship between the parties . It is thus
prospective. The amendment turns this clock around. Granted t here is still an
agreement entered into on that date, and it is still an oral agreement. But now
the agreement is recorded as a compromise. The compromise becomes a
synthesis of an earlier agreement , not previously pleaded , and a remaining
prospective agreement .
[30] The earlier agreement now moves the alleged contract forward by two years ,
commencing in February 2012. It is again alleged to be an oral agreement. The
contracting parties are still the plaintiff and again Mchunguzi. However , unlike
with the London agreement , the contract was not formed at a single meeting.
Instead , the plaintiff pleads that the contract was concluded over a period of
time and not at one specific location. The essential terms were that Mchunguzi
contracted the plaintiff to perform various consultancy services for Ericsson in
Angola . I use the term Ericsson as oppose d to merely the defendant because
the agreement was purportedly for various entities in the Ericsson group.
11
[31] The first agreement was that the plaintiff was to assist various entities in the
Ericsson group by having funds owing to them by their custome rs (including
Movitel and Unitel) released by the national Bank of Angola ( “BNA”). These
funds had been held up because the Bank was experiencing a shortage of
foreign currency. As payment for these services the plaintiff would receive 5%
of any funds that he could secure the release of. The plaintiff alleges that during
the period 2012 to 2105 he secured the release of $ 200 million hence entitling
him to a fee of $ 10 million.
[32] The payments were not to be made to the plaintiff directly , but instead , thorough
two intermediaries one based in Lebanon and the other through a company
registered in Mexico. He alleges that these companies made various payments
to him between 12 July 2012 and 24 June 2014 .
[33] He then alleges the existence of a second agreement in which he was to assist
the Ericsson Group to secure an agreement with Movicel , this meant replacing
Movicel’s then supplier , a Chinese company called ZTE , with Ericsson. If he
succeeded , he would get 5% of the contract value. He says he procured the
contract for Ericsson in February 2014. Since the contract was wort h $ 95
million, he was entitled to receive $4.75 million . He alleges he was never paid
for these.
[34] But this is where the recasting of the London agreement comes about in the
proposed amendme nt. The London agreement still stands in the same terms
as it was pleaded in the current version. But here is the key new allegation. It
12
is now reflected as a compromise of the prior agreements – those that were
entered into before 2014.
[35] The case that it being made out now is that the London agreement is a fig leaf.
The reason that it is a fig leaf is due to the problems of Ericsson. It had engaged
intermediar ies between the plaintiff and itself to effect payment . The reason for
this indirect arrangement was so Ericsson could avoid scrutiny from
international regulators . But the one intermediary failed to pay over monies
owing to the plaintiff. Hence the compromise was to bury the past bad history
and to recast it prospectively in term s that looked more favourable for
governance issues from Ericsson’s perspective and since the plaintiff was
anxious to be paid , worked for him as well.
[36] In his witness statements and affidavit, the rationale for this unorthodox
arrangement is given further justification. Ericsson despite its claims for the
highest levels or corporate governance that it made much of in the previous
dismissal application before Unterhalter J, has according to the plaintiff not
practised what it preaches. The plaintiff has attached to his affidavits a deferred
prosecution agreement the defendant’s parent company , Telefon aktiebolaget
LM Ericsson , had entered into with the United States Department of Justice
regarding its activities in several countries . Factual issues differed depending
on the country concerned. But the plaintiff has focussed on the statement of
facts concerning what took place in Indonesia and Vietnam because it related
to so called facilitation between the parent and various intermediaries. In it
Ericsson makes certain admissions of contravention s of the US Foreign Corrupt
13
Practices Act. Central to the admissions is Ericssons apparent use of
intermediaries in foreign jurisdictions to do what it does not wish to do itself.
[37] According to the US agreement Ericsson made payment to in termediaries who
in turn would pay third parties “… whom Ericsson employees knew would not
pass Ericsson’s due diligence processes .”3
[38] Thus, the plaintiff is paving the way for a similar fact argument that what
happened in South East Asia was Ericsson’s way of working in difficult
jurisdictions , and hence giving his version in the propose d amendment some
element of plausibility , as well as the reason why Ericsson allegedly adopted
the compromise.
[39] But it is also alleged that the Lo ndon agreement existed to cater for future
business conducted between the parties . But in terms of a new allegation even
if the defendant did not require these services, it was still required to make
payment .
[40] But one of the most significant changes is the proposed amendment to the
present paragraph 30 which deals with the defendant’s breach. Under the
current particulars of claim, the plaintiff alleged that he had complied with his
obligations and that he had provided the services he alleged he provided.
Recall the defendant had in its plea in one of the alternatives alleged that no
services had been performed. In the proposed amendment the plaintiff has
deleted this clause and replaced with the allegation that he had complied with
3 Paragraph 83 of the Statement of Facts in the Deferred Prosecution Agreement.
14
the terms of the oral agreement “ …in that he had tendered to provide the
services referred in paragraph 29.2 supra.” This is a reference to the services
rendered in respect of the BNA payment clearance.
[41] There are other features that change such as the amount owed. But the
question is even though there are some overlaps between the current version
and the proposed versio n, is there now a new cause of action .
[42] The defendant identifies five material changes between the versions :
a. The nature of the business development agreement changes .
b. The period of time over when events happened including when the
plaintiff provided these services .
c. The Ericsson entities to whom the services were provided .
d. A change in the nature of performance from performing to tendering
perform.
e. A change in the case on authority .
[43] The plaintiff has argued that the amendments were designed to meet the
evidence that is set out in the documents and which the erstwhile legal team
had, for reasons not explained , failed to identify as his true case. But the
defendant argues that the amendments were brought about to identify the gaps
in the case that they had made out in their plea. Essentially the amendments
seek to meet two problems they had identified – the fact that no documents
indicate that the plaintiff had performed , whilst the replication was designed to
meet the challenge to Mchunguzi’s authority by bringing in others from
Ericsson.
15
Analysis
[44] In terms of the Unte rhalter order the plaintiff must meet the test that he does
not unjustifiably delay [s] the case coming to trial .
[45] It is common cause that the trial would have to be delayed. The plaintiff seek s
to justify the delay by blaming his erstwhile legal team both for their lack of
preparation and lack of attention to the d ocumentary record that had been
discovered.
[46] Most of the plaintiff’s efforts have gone into discrediting the previous legal team
and showing how he diligently kept the pressure on them to properly prepare
for trial , yet notwithstanding his efforts from afar they failed to do so. Since the
previous legal team are not parties to th e present application and the defendant
is not in a position to know what happened since it is an attorney -client matter ,
I have to accept the version of the plaintiff on the following points. That he was
unhappy with the efforts of his past legal team and that despite diligent attempts
to engage with them he justifiably withdrew their instructions and engaged his
new legal team who made their best efforts in a short period of time to draft the
new amendment, the replication and prepare papers in the respective
applications.
[47] But this is only part of what the plaintiff is required to explain. He is also required
to explain why his new version has come at the eleventh hour. The plaintiff sent
out his letter of demand in this matter as long ago as 2015 a nd instituted the
action in 2016. Since that date there were numerous attempts to amend his
pleadings some of which failed whilst others were abandoned . But notably in
16
none of these attempts did he put forward the version he is now advancing in
the amendment application. That requires an explanation. This is not simply a
change in the technical aspects of the pleadings where such an explanation
may have been explained on the basis that he is a peregrinus in this jurisdiction
or someone unfamiliar with our legal system or who does not speak English as
his first language .
[48] The pl aintiff argues that the changes are not substantial. The facta probanda
are the same ; there is just a change in the facta probantia . But even it is , that
is not the point. The case the plaintiff now contends for is based on a revised
history of the interactions between him and the defendant. The central plank of
his current case , the London agreement , is no longer to be considered as the
original agreement , but as a product of a compromise of previous agreements.
That is a substantial change because not only have the pleaded terms been
amended but the context and purpose of the agreement have change d as well .
[49] Second the plaintiff argues a process point. The history of the litigation prior to
the Unterhalter J judgment he argues must be ignored. As his counsel have put
in their heads of argument it is an issue of subject estoppel. Only the events
after the date of the judgment are relevant to the test of justification. Whilst I
accept that there must be events that have taken place after that date that form
part of the analysis, ignoring the history , as if the j udgment wiped the slate clean
is wholly artificial and unfair to the defendant. In determining whether a
substantial amendment now is justified it is wholly proper to consider the past
history of the case including attempts to amend. That is relevant to the question
of why this has happened now , and not earlier , given the ample opportunity the
17
plaintiff had to do so. To pass the test for justification the plaintiff needed to
explain this. He has failed to do so.
[50] Nor is there any satisfactory explanation for the late filing of the replication
nearly five years after it was to be filed in terms of the rules. The replication is
also not without significance as it implicates two further executives of Ericsson
for the first time. Again , no explanation is given for why this information was not
provided much earlier. While the plaintiff is not required to be familiar with
notions such as ostensible authority , he does know who he was dealing with
and that this was in issue since the plea was filed in November 2019 .
[51] Nor is the fact that English is not his first language. The emails show that he
regularly communicated and received communication from various of the
intermediaries and others in English. As is eviden t from the content of these
emails he does not l ack business sophistication. The plaintiff’s legal team
quotes from the decision of Heher JA in Madinda v Minister of Safety and
Security on the meaning of good cause.
[52] There the learned judge states :
“It is enough for present purposes to say that the defendant must at
least furnish an explanation for his default sufficiently full to enable
the court to understand how it really came about, and to assess his
conduct and motives”4
4 Madinda v Minister of Safety and Security [2008] 3 All SA 143 (SCA) , at paragraph 11.
18
[53] But this is what is lacking in the present matter – a lack of a sufficient
explanation on the core issue – why was the present explanation not
forthcomin g any earlier in this litigation. And most clamant of all the omissions
– was this version told to the previous legal team. It is not enough to say that
the erstwhile legal team had the discovered documents and should have
properly appreciated the case as it is now in terms of the proposed amendment .
This is a case based on an oral agreement in either the current version or the
proposed amendment. If it was , and it has all the conduct now proffered on the
form of the compromise explanation this must have required him to explain this
to his legal team. Now here in his lengthy affidavit identifying their misste ps does
he say this.
[54] As the defendant points out most of his final interactions with his erstwhile legal
team refer to their trial readiness not the need to amend the pleadings to reflect
the ‘correct version’.
[55] The ability of litigants to blame past representatives for their difficulties has
been well articulated in the Saloojee case which is still good law. There t he
court held that a litigant is :5
“entitled to hand over the matter to his attorney and then wash his
hands of it.”
[56] But the court went on to state:
5 Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141C.
19
“…If he relies upon the ineptitude or remissness of his own
attorney, he should at least explain that none of it is to be imputed
to himself. ”
[57] The plaintiff has here given only a partial explanation. Whether that suffices to
justify condonation for the late amendment also depends on the case on the
merits. Here Heher JA stated again in Madinda that:
“Strong merits may mitigate fault ; no merits may render mitigation
pointless. ” 6
[58] I go on to consider the merits.
The merits .
[59] The factual issues to be considered here are equally relevant to a consideration
of the dismissal case. I consider both now.
[60] The first issue I have to consider is what test I must apply to the dismissal
application . The existing test , which was applied by Unterhalter J , is the one set
out in the case of African Farms .7 That test for whether the legal proceedings
are vexatious, and an abuse of proc ess, is whether they are unsustainable as
a matter of certainty rather than merely on a preponderance of probability.
[61] The first question I have to answer is whether I should apply this test to the
dismissal application, or the test set out in the order of Unterhalter J , namely
6 Madinda supra, paragraph 12.
7 African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 565 .
20
that the plaintiff engages in “conduct that unjustifiably delays the case coming
to trial”
[62] It is clear that this latter test is less de manding than the certainty test laid down
in African Farms . In explaining the order Unterhalter J said the following:
“I recognize that an order of this kind is not self -executing. The
order of dismissal only comes into effect if Mr Bencherki
unjustifiably delays the matter coming to trial. That may require a
court to decide whether Mr Bencherki has so acted. But it does
not alter the finality of the order I propose to make. If a court finds
that Mr Bencherki has acted in a fashion contrary to what the
order requires of him, then the consequence, dismissal, follows. ”
[63] To the extent that this order of Unterhalter J could be construed to dilute the
test for dismissal set out in African Farms , which has long been accepted , I will
nevertheless apply it, albeit I will approach its terms strictly.
[64] There were two peri ods relevant to the period since that judgment was
delivered. The first period was when the previous legal team was representing
the plaintiff. That legal team on the plaintiff’s version failed to act expeditiously
in getting the case ready for trial. The email correspondence that has been
disclosed shows that the plaintiff was pressing them for answers on preparation
on a regular basis and became frustrated with what he considered their lack of
urgency. That legal team is not before me. I do not have their views on the
matter. As it stands, I only have the plaintiff’s version which paints them in a
most unfavourable light. But since I cannot test this version on papers, I must
21
accept that the plaintiff has been let down by them despite his continual
prodding. What borders on the unjustifiable is the plaintiff’s f ailure to explain
whether he had disclosed the version proposed in the amendment application
to the erstwhile legal team. Whilst this conduct is worthy of criticism , I consider
that it is adequately remedied by an adverse costs award as go on to discuss
below. It does not on its own constitute a basis for founding as extreme a
remedy as an order of dismissal.
[65] As far as the second period is concerned , the new legal team , as I remarked
earlier , have acted expeditiously , and prepared diligently ; inter alia analysing
documents, procuring witness statements, and bringing and responding to
applications under tight deadlines.
[66] If they have correctly advised the plaintiff that an amendment was necessary,
then a further delay was justifiable. That entails a consideration of the whether
the record discloses some evidential basis for the proposed amendment and
replication. I go on to consider this.
[67] Since the plaintiff’s case is based on an oral agreement which was allegedly
conclude d some twelve years ago , the documentary record , largely in the form
of email correspondence , will prove highly probative.
[68] The plaintiff has attached a list of 149 documents which he alleges are the
essential documents in the trial bundle. In his affidavit he traces a number of
these emails which are at least consistent with , if not conclusive of his version
in the proposed am endments and which predate the London agreement.
22
[69] From these which involve Mchunguzi and another Ericsson person Adam
Hashem , the Vice President major accounts for West Africa, it is apparent that
the plaintiff was seen as someone well connected in Angola . He is described
by Mchunguzi in one email dated September 2012 , as “our man for Angola and
we have dropped other pretenders .”
[70] Much of this earlier correspondence is with the alleged intermediary between
the plaintiff and Ericsson, a certain Thomas Schultz , since deceased . Shultz
variously in his correspondence with the plaintiff refers to his brief to get funds
out of Angola for the defendant and that this would lead to payment of 5%. He
also promises that a contract was being drafted.
[71] The emails also show that some senior Ericsson staff other than Mchun guzi
were also aware of the plaintiff. For instance, Lars Linden , who the plaintiff
describes as Ericsson’s Head of Sub- Saharan Africa , wrote an email in October
2012 to Thomas Schultz enquiring as to whether the plaintiff could help them in
Angola getting money from a “Tota bank’’ .
[72] Given that the London agreement is alleged to have taken place on 20
November 2024 it is instructive to consider the terms of the first email in the
record from the plaintiff to Mchunguzi which followed that meeting. Here the
plaintiff writes as follows on 22 November 2014.
“Dear Magnus, I am glad we had the opportunity to meet in
London to finalize. As we went through the details, the conclusion
agreed is: -Contract to be signed by Ericsson before end of year
covering the following: 3 year contract for clearance (shifted from
23
% to fixed fee) (Annually fixed fee of 850,000 USD) to be paid
effective Jan 2015, Jan 2016, Jan 2017 Awaiting the contract for
signature by next week. Best Regards, (emphasis provided).
[73] This email is sufficiently ambiguous to be open to contending interpretations. It
may suggest no prior agreements existed prior to the London agreement.
Alternatively , the phrase ‘…the conclusion agreed ’ could mean that they had
agreed on a compromise and thus be consistent with the version in the
proposed amendment .
[74] There is of course no documentary proof of any of the agreements, but it is the
plaintiff’s version that there were none because of the fact that this was
Ericsson’s modus operandi in dealing with difficult jurisdictions. Hence the
plaintiff makes much of the deferred prosecution agreements in the United
States, with the Department of Justice. This may be a case where the plaintiff
still faces major challenges complicated by the involvement as intermediary of
the late Thomas Schulz . But what is new are witn ess statements proffered by
the plaintiff, including an unusual, taped interview with the main role -player for
the defendant , Mchunguzi, which can be best described as a consummately
skilful act of fence -sitting. Thus, a key witness while not supporting the plaintiff’s
version does not refute it either.
[75] As far as the replication is concerned the plaintiff has alleged that at least 16
other Ericsson personnel (apart from Muchunguzi) either had some interaction
with the plaintiff or discuss him internally. Thus, the case of ostensible authority
has some foundation in the record.
24
[76] Because the plaintiff has dealt in its witness statement (it filed only one) with
the case as it is it has not dealt with the content of any of the emails. The sole
witness statement from Raymond Rademaker the Business controller for the
defendant who says he was involved in its Angola business from 2 015 to 2017
said he had never come across or heard of the plaintiff. He also states that
Mchunguzi would not have had the authority to contract without a board
resolution . But this serves merely to join issue with the plaintiff and does not
serve to refute what is contained in the documentary record.
[77] To summarise. The plaintiff has through the emails and witness statements
provided evidence of prior contact with various functionaries of Ericsson
commencing two years prior to the London agreement. Based on the US
deferred prosecution agreement h e advances a theory of why no formal
contract was entered into and the reason why the London agreement
constituted a compromise. These are at least the ingredients of a triable case.8
[78] But there is yet another issue. The defendant contends that if the case is now
based on a cause of action commencing in 2012 then the case has prescribed ;
at least as far the first claim in the proposed amendment is concerned. This is
because the summons was only issued in 2016 . The debate between the
parties was whether this summons interrupted prescription for the purpose of
amendment. It is of course trite law that an amendment which is exci piable
cannot be granted. The plaintiff contends that the question is when the debt
arises not when the cause of action arose. Given the compromise of 201 4 the
8 Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd (2002 ) SA 447 (SCA) 447 at paragraph 34 , where the
court considers the case law on what constitutes a triable issue when it comes to an amendment.
25
debt arose then. The defendant argues to the contrary. But this debate requires
evidence and should not be decided as if it were an exception. I consider this
point cannot presently be decided and must wait for trial. The potential
prescription issue therefore cannot be a basis for refusing to grant the
amendment.
[79] Thus , the action for dismissal must fail ; whether or not the test is
conclusiveness or unjustifiable delay . This then leaves the question of what to
do about the amendment application and the replication application. Technically
they are separate self -standing applications. But if I were to limit myself to
refusing to grant the dismissal application and not grant the plaintiff his two
applications, this would leave this case in limbo . The plaintiff cannot run his
case on the current version. His legal team have made this clear. Refusing his
two applications would amount to indirectly granting the dismissal applic ation . I
thus see no other option but to allow the amendment application and the
condonation for the late filing of the replication.
[80] That does not mean that the plaintiff should get his cost s. On the contrary the
lateness of the application , after a history of prevarication by the plaintiff in this
litigation , coupled with the absence of a proper explanation as to whether the
new version was given to the prior legal t eam, are issues for which the plaintiff
should be held accountable . Even if at best for him the prior legal team is
responsible for its failure to appreciate what his true cause of action was, there
is no reason that the delay now occasioned should be held against the
defendant. He chose at the eleventh hour to change his representation and to
come with a new version. He is responsible for both these decisions.
26
[81] The defendant was well -justified in opposing the applications to amend and for
condonation for the late filing of the replication , for the reasons I explained
earlier.
[82] For this reason, I am awarding the defendant the costs of these two
applications . Both sides employed two counsel including senior counsel, so this
cost is justified , as well on Scale C . The defendant was also justified in seeking
dismissal, albeit unsuccessfully. I could not justify giving it costs for this
application, since it proved unsuccessful, but I also would not make an adverse
costs award against it. For this reason, I will make no costs award in respect of
this application.
ORDER: -
[83] In the result the following order is made:
1. The plaintiff/applicant is granted leave to amend his particulars of claim in
accordance with the notice of intention to amend dated 9 October 2024.
2. The plaintiff/applicant's statement of claim delivered on 9 October 2024 shall
stand as a statement of claim as contemplated in paragraph 20 of the
Commercial Court Practice Directives of this Court dated 2 June 2022.
3. The plaintiff/applicant's late delivery of his replication is condon ed.
4. The defendant/respondent is permitted to, within 20 days hereof :
a. to deliver a consequently amended plea;
b. alternatively, to (a) , to deliver a responsive statement of case as
contemplated in rule 21 of the Commercial Court Practice Directives
of this Court dated 2 June 2022.
27
5. The defendant’s application for dismissal is dismissed . There is no order of
costs made in respect of that application.
6. The plaintiff is liable for the defendant’s costs in respect of the application to
amend, and the application for condonation of the late delivery of the
replication and the upliftment of the bar, with cost s of two counsel , including
one senior, on Scale C .
_____ _________
N. MANOIM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHNANNESBURG
Date of hearing: 23 October 2024
Date of Judgement : 13 January 2025
Appearances:
Counsel for the Plaintiff /Respondent : N A Cassim SC
M Mostert
Instructed by : Shaheed Dollie Inc
Counsel for the Defendant/ Applicant : C Watt-Pringle SC
P Smith
Instructed by: Bowman Gilfi llan Inc