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[2024] ZALMPPHC 192
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Firstrand Bank Limited t/a Wesbank v Trustees for the Time Being of Lona Venter Familie Trust and Others (7480/2020) [2024] ZALMPPHC 192 (22 November 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 7480/2020
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED:
YES
/NO
DATE:
22/11/2024
SIGNATURE:
In
the matter between:
FIRSTRAND
BANK LIMITED t/a WESBANK
(Registration
number: 1929/001225/06)
PLAINTIFF/
APPLICANT
and
THE
TRUSTEES FOR THE TIME BEING OF
"LONA
VENTER FAMILIE TRUST
-
IT: 09635/2004"
1
st
DEFENDANT/RESPONDENT
ELANIE
NACHTEGAAL HAVENGA N.O.
(In
her capacity as Trustee of the
"LONA
VENTER FAMILIE TRUST
-
IT: 09635/2004"
2
nd
DEFENDANT/RESPONDENT
ELANIE
NACHTEGAAL HAVENGA
3
rd
DEFENDANT/RESPONDENT
FERREIRA
MICHIEL NEL N.O
(In
his capacity as Trustee of the
"LONA
VENTER FAMILIE TRUST
-
IT: 09635/2004"
4
th
DEFENDANT/RESPONDENT
FERREIRA
MICHIEL NEL
5
th
DEFENDANT/RESPONDENT
LONA
VENTER N. O
(In
her capacity as Trustee of the
"LONA
VENTER FAMILIE TRUST
-
IT: 09635/2004"
6
th
DEFENDANT/RESPONDENT
LONA
VENTER
7
th
DEFENDANT/RESPONDENT
LEONARD
VENTER N.O.
(In
his capacity as Trustee of the
"LONA
VENTER FAMILIE TRUST
-
IT: 09635/2004"
8
th
DEFENDANT/RESPONDENT
LEONARD
VENTER
9
th
DEFENDANT/RESPONDENT
ROUAN
VENTER N.O.
(In
her capacity as Trustee of the
"LONA
VENTER FAMILIE TRUST
-
IT: 09635/2004"
10
th
DEFENDANT/RESPONDENT
ROUAN
VENTER
11
th
DEFENDANT/RESPONDENT
Heard
31
October 2024
Delivered
22 November 2024 by circulation to the parties' legal representatives
Coram
KL PILLAY AJ
JUDGEMENT
KL
Pillay AJ
Introduction:
[1]
The parties are before this Court with three separate applications
for leave to amend
the particulars of claim in terms of Rule 28(4) of
the Uniform Rules of Court, in respect of three different cases, in
which the
Applicant /Plaintiff has instituted proceedings against the
Respondents/Defendants. The following case numbers pertain to the
relevant
proceedings wherein this application is sought. The
application is opposed in respect of all three cases.
[1.1] Case number
7480/2020
[1.2] Case number
7478/2020
[1.3] Case number
7472/2020
[2]
In all three case it was agreed between the parties that the
Defendants would file
their plea after the application for leave to
amend was ventilated. Prior to proceeding with the applications, it
was by agreement
between the parties, that the parties would argue
once in respect of all three cases, as the amendments sought, as well
as the
objection thereto, were premised on similar facts involving
the same parties, with minor differences. The request was to avoid
duplicity of argument, for each individual matter. This Court ordered
as per the agreement that the parties would argue on case
number
7480/2020, however judgement would be handed down in respect of all
three above mentioned case numbers. For ease of reference,
the
parties will be referred to as in the main action.
Brief
Background:
[3]
In the
case number 7480/2020
, on or about the 26 April 2017,
and at Marble Hall, UniGro Financial Services Proprietary Ltd, a
private company with limited liability,
duly incorporated and
registered as such in terms of the Company Laws of the Republic of
South Africa with registration number
1999/014168/07(UniGro) duly
represented by an authorised employee and the 1
st
, 2
nd
,
4
th
, 6
th
, 8
th
and 10
th
Defendant (The Trust) duly represented by the 8
th
Defendant in his capacity as an authorised Trustee entered into a
written instalment agreement, in terms of which UniGro sold to
the
Trust a 2017 John Deere 608 KOP, with chassis number: 1[…](the
goods). The UniGro's rights, interests and titles in
terms of this
agreement were ceded to the Plaintiff on 2 March 2015. The details
pertaining to this cession are not relevant for
the purpose of this
application.
[4]
It was alleged that the Trust was in breach of the agreement as it
failed to pay the
annual instalments and on or about 18 August 2020,
was in arrears with an amount of R244 136,86. It was alleged that
despite demand
the arrears were not settled resulting in the
Plaintiff issuing Summons against the Defendants on 26 November 2020.
This was served
on the Defendants on 17 August 2021. The Plaintiff
gave notice to substantially amend the particulars of claim which was
served
on the Defendants on the 30th of August 2022. The Defendants
objected to the proposed amendments which was served on 21 November
2022, resulting in the opposed application for leave to amend in
terms of Rule 28(4) of the Uniform Rules of Court.
[5]
In case number
7478/2020
, on or about the 26 April 2017, and
at Marble Hall, UniGro Financial Services Proprietary Ltd, a private
company with limited liability,
duly incorporated and registered as
such in terms of the Company Laws of the Republic of South Africa
with registration number
1999/014168/07(UniGro) duly represented by
an authorised employee and the 1
st
, 2
nd
, 4
th
,
6
th
, 8
th
and 10
th
Defendant (The
Trust) duly represented by the 8th Defendant in his capacity as an
authorised Trustee entered into a written instalment
agreement, in
terms of which UniGro sold to the Trust a 2017 John Deere CS690
Cotton Stripper with engine number R[…] and
chassis number
1[…] (the goods). The UniGro's rights, interests and titles in
terms of this agreement were ceded to the
Plaintiff on 2 March 2015.
The details pertaining to this cession are not relevant for the
purpose of this application.
[6]
It was alleged that the Trust was in breach of the agreement as it
failed to pay the
annual instalments and on or about 18 August 2020,
was in arrears with an amount of R3 375 679,18. It was alleged that
despite
demand the arrears were not settled resulting in the
Plaintiff issuing Summons against the Defendants on 26 November 2020.
This
was served on the Defendants on 25 March 2021. The notice to
amend was served on the 30 August 2022 and objection by the
Defendants
were served on the 12 September 2022. The Rule 28(4)
application was served on the 26 September 2022.
[7]
In the case number
7472/2020
, on or about the 26 October 2017,
and at Roedtan, UniGro Financial Services Proprietary Ltd, a private
company with limited liability,
duly incorporated and registered as
such in terms of the Company Laws of the Republic of South Africa
with registration number
1999/014168/07(UniGro) duly represented by
an authorised employee and the 1
st
, 2
nd
, 4
th
,
6
th
, 8
th
and 10
th
Defendant (The
Trust) duly represented by an authorised Trustee entered into a
written instalment agreement, in terms of which
UniGro sold to the
Trust a
2017 JCB 531/70
with engine number S[…] and chassis
number J[…] (the goods). The UniGro's rights, interests and
titles in terms of
this agreement were ceded to the Plaintiff on 2
March 2015. The details pertaining to this cession are not relevant
for the purpose
of this application.
[8]
The Plaintiff alleged that the Trust was in breach of the agreement
as it failed to
pay the annual instalments and on or about 18 August
2020, was in arrears with an amount of R232 660,66. It was alleged
that despite
demand the arrears were not settled resulting in the
Plaintiff issuing Summons on the 26 November 2020, which was served
on the
17 August 2021. The notice to amend was served on the 30
August 2022 and objection by the Defendants were served on the 21
November
2022. The Rule 28(4) application was served on the 29
November 2022.
[9]
The objection by the Defendants in all three cases was largely
premised on the following
two grounds:
[9.1] That the proposed
amendment sought to introduce a new claim against the 7
th
,
9
th
and 11
th
Defendants as sureties in terms of
an alleged instalment sale agreement, concluded between the parties
in respect of all three
cases and;
[9.2] That the
Plaintiff's claim against the sureties namely the 7
th
, 9
th
and 11
th
Defendants in terms of the instalment sale
agreement had prescribed in terms of the provisions of the
Prescription Act 68 of 1969
, and that the proposed amendments, if
allowed would resuscitate a prescribed claim, which is impermissible
in law in respect of
all three cases.
[10]
In the current particulars of claim the 1
st
Defendant (the
Trust) is cited with the 2
nd
, 4
th
, 6
th
,
8
th
and 10
th
Defendants in their capacity as
Trustees, and the 3
rd
, 5
th
, 7
th
,
9
th
, and 11
th
Defendants are cited in their
personal capacities. The Plaintiff sought in the prayers that the 1
st
Defendant returns the "goods" to the Plaintiff, with the
judgement sought against the 2
nd
to 11
th
Defendants, for the amount of damages that the Plaintiff may have
suffered, to be postponed
sine die
pending the return of the
"goods" to the Plaintiff, the subsequent valuation and sale
thereof, and the calculation of
the amount to which the Plaintiff was
entitled, once that process was finalised.
[11]
The amendments that were being sought, as contained in the notice of
intention to amend, pertains
in part to the allegations that the 7
th
,
9
th
, and 11
th
Defendants in their personal
capacities, bound themselves in terms of Deeds of Suretyship, as
sureties and co- principal debtors,
to UniGro or its successors, for
any and/or all amounts that were and/or may in future, become due and
payable by the 1st Defendant
the "Trust" to UniGro. The
copies of the Deeds of Suretyship were annexed to the amended
pleadings, the contents repeated
and incorporated therein.
[12]
The relevant, material terms of the Deeds of Suretyship were the
following;
[12.1] "The 7
th
,
9
th
, and 11
th
Defendants (the Sureties) bound
themselves jointly and severally, as sureties and co-principal
debtors for the punctual payment
of all sums due to UniGro by the
Trust;(clause2.1)
[12.2] The "Sureties"
Deeds of Suretyship constitutes continuing security for the whole
amount that the Trust may now
or in the future, become owing to
UniGro; (clause 2.2)
[12.3] The Sureties
obligations to UniGro in terms of the suretyship would be unlimited;
(clause 3)
[12.4] The Sureties
expressly waive the benefits of the exceptions non numeratae
pecuniae, non causa debiti, errore calculi and
beneficia excussionis
et divisionis; (clause 4.2)
[12.5] The Sureties
accepted liability for payment of all legal cost incurred by UniGro
on a scale between attorney and client in
respect of the recovery of
any amounts owing by the Trust and secured by the Deeds of
Suretyship;(clause 6.1,6.1.1and 6.1.2)
[12.6] UniGro is entitled
to, at any stage, without the consent of the sureties, either cede
any of its rights against the sureties
to another person/entity, or
delegate its obligations towards the sureties to another
person/entity, in which event the suretyships
will be available to
such person/entity in relation to all obligations due by the Trust to
UniGro and such person/entity;(clause8.1)
[12.7] Certificates
signed by any one director or manager of UniGro as to the extent of
liabilities and obligations of the1st Defendant
towards UniGro will
be prima facie evidence of the Trust's and the Sureties' liabilities
and obligations in terms of the Deeds
of Suretyship;(clause10.1)
[12.8] The Sureties
respectively elected as the domicilium addresses; the addresses
reflected on page 1 of the respective Deeds
of Surety under their
names. (clause12.1)"
The
Arguments before Court:
[13]
According to the Plaintiff, the particulars of claim should contain
averments alleging all material
facts necessary to give rise to an
enforceable claim, failing which it will be excipiable for failing to
disclose a cause of action.
It was for those reasons that the need
arose for the amendments, so as to place the relevant factual matrix
before the Court.
[14]
The Plaintiff submitted that the primary objectives of these
amendments were "to obtain
a proper ventilation of the dispute
between the parties, to determine the real issues between them, so
that justice may be done.
[1]
”
[15]
It was submitted by the Plaintiff that the amendment sought would
neither prejudice the Defendants,
nor would they suffer any
injustice, for they would be in no worse position than they would
have been, if the pleadings in its
amended form, had been filed in
the first instance.
[2]
[16]
The Defendants objected to the amendments sought as highlighted above
indicating that the Plaintiff
did not file an affidavit motivating
the grounds for the amendment sought and putting all the facts and
circumstances before Court.
[17]
The Defendants indicated that amendments will always be allowed,
unless the application to amend
is
mala fide
or unless such
amendments, would cause an injustice to the other side, which could
not be compensated by an order for costs.
[18]
The Defendants opposition to the application to amend was based on
the failure by the Plaintiff
to show
bona fides
and the
Plaintiff's failure to provide a proper explanation for the extremely
late amendments that the Plaintiff sought the Court
to grant.
[19]
The Defendants objected to the additional paragraphs that made
specific reference to the suretyship
agreement which according to the
Defendants were an attempt to introduce new claims wherein the
Plaintiff sought to have the 7
th
, 9
th
and 11
th
Defendants liable, in respect of the damages portion of the claim,
personally, jointly and severally, the one paying the other
to be
absolved.
[20]
The Defendants believed this was an attempt to resuscitate or remedy
a prescribed claim by way
of an amendment which was prejudicial to
the Defendants, and this could not be compensated for, with an
appropriate cost order.
This was further exacerbated by the lack of
any affidavit before Court, to explain why these amendments were to
be granted. The
Plaintiff also failed, when seeking to amend their
pleadings to offer costs for the indulgence sought, displaying a
lacklustre
approach to the proceedings and the Defendants. The
Defendants heads of argument and relevant case law were relied upon
to enable
the Court, to best understand the position, in respect of
Rule 28
and the applicability of the relevant case law, to these
principles and the cases at hand.
[21]
The Defendants indicated that the Plaintiff's argument that the issue
of damages were being postponed
sine
die
,
still equated to a money debt and was within the ambit of the
Prescription Act
[3
]
and
therefore according to the Defendants this debt, in respect of the
suretyship had prescribed and the Court should dismiss all
three
applications to amend, with costs on attorney and client scale, Scale
B in terms of the Uniform Rule67A in respect of each
case. The
Defendants indicated that if the Court was inclined to grant the
application to amend, then costs be costs in the cause,
in respect of
all the three cases.
[22]
The Plaintiff in response, indicated that the allegation of the claim
prescribing in respect
of the suretyship agreement was baseless, and
this objection to the amendments was without merit. The proceedings
before Court
were for the rei vindicatio, the return of the goods
sold to the Defendants, who have failed to make consistent payments
on the
three accounts, resulting in the Plaintiff seeking the
cancellation of the agreement, and the return of the goods. The rest
of
the proceedings in respect of the damages component would be
postponed
sine die
pending the return of the goods, for
subsequent valuation and sale to occur. It is only once this has been
finalized, would the
Plaintiff be in a position to approach the Court
for relief with precise calculated amounts of damages. The Plaintiff
noted that
all 11 Defendants were cited, at time of Summons being
issued clearly indicative of the Plaintiff's intention to hold all
the Defendants
liable including the 7
th
, 9
th
,
and 11
th
Defendants.
[23]
The Plaintiff conceded that there were incorrect and insufficient
information, as was contained
in the particulars of claim, warranting
the amendment. It was indicated that the Summons did not contain
averments, alleging all
the material facts necessary, to give rise to
an enforceable claim, therefore the amendments were being sought.
[24]
The Plaintiff highlighted that the practical rule was that an
amendment would not be allowed
if the application to amend was made
mala fide
or if the amendment would cause the other party such
prejudice as cannot be cured by a cost order and where appropriate
the granting
of a postponement.
[25]
The Plaintiff confirmed that an application to amend would not be
granted if it would resuscitate
a prescribed claim or defeat a
statutory limitation as to time
[4]
.
The Plaintiff motivated that a claim for repossession of a vehicle,
because it is a claim based on ownership of a thing, is not
a debt as
contemplated by
Section 10
of the
Prescription Act and
does not
prescribe in 3 years
[5]
.
[26]
The Plaintiff only sought the return of its property, with damages
only to be established at
a later stage, prescription played no role,
as the Plaintiff was not claiming damages from the Defendants in
general and against
the 7
th
, 9
th
and 11
th
Defendants specifically. This portion of the proceedings would be
postponed and be ventilated at the relevant time. The Plaintiff's
motivated that the Defendants could if the amendments were allowed
file a special plea of prescription, therefore there could be
no
prejudice claimed by the Defendants.
[27]
The Plaintiff maintained that prescription was interrupted once
Summons was served on the principal
debtor, and in respect of a
surety, in which a claim for damages against the surety, was made
contingent upon the outcome of the
litigation, against the principal
debtor. This would be sufficient to interrupt prescription against
the surety, even in circumstances,
where the nature of the relief(for
example the quantum of damages claim against the principal debtor)
against the sureties was
only clarified by an amendment made, more
than three years, after the debt became due.
[6]
Therefore relying on the case of Jans v Nedcor Bank Ltd
[7]
the Plaintiff indicated that an interruption or delay in the running
of prescription against the principal debtor, also interrupted
or
delayed the running of prescription in favour of the surety.
[28]
The Plaintiff maintained that a Court had the power to grant material
amendments in circumstances
where the Court considered prejudice or
injustice to an opponent. The Plaintiff submitted that the amendments
sought by the Plaintiff
was justified and necessary, "to obtain
a proper ventilation of the dispute between the parties to determine
the real disputes
between them, so that justice may be done" as
per the case of Cross v Ferreira.
[8]
The Plaintiff sought the Defendant's objection to the proposed
amendments be dismissed with costs on an opposed scale and that
the
Plaintiff be granted leave to amend its particulars of claim as per
the notice to amend dated the 24 August 2022. The Plaintiff
was to
deliver its amended pages within 10 days after such leave, having
been granted, in respect of all the three cases.
The
Issues:
[29]
The crisp issues to be determined were:
[29.1] Whether the
application to amend by the Plaintiff was made
mala fide
or
could cause an injustice to the Defendants.
[29.2] Whether the
application to amend was, as alleged by the Defendants, an attempt to
introduce new claims, resuscitating the
prescribed deed of surety, in
respect of the 7
th
, 9
th
and 11
th
Defendants?
[29.3] Whether the
amendments sought would have the effect of obtaining a proper
ventilation, of the dispute between the parties,
to determine the
real issues between them?
[29.4] The question of
costs in respect of the three applications to amend in terms of
Rule
28.
The
Legal Principles and Applicability:
[30]
Rule 28 of the Uniform Rules of Court regulates amendments to
pleadings. The Court has a discretion
whether to grant same based on
various considerations. Regard was had to the case of Vinpro NPC v
President of the Republic of
South Africa and Others (1741/2021)
[2021] ZAWCHC 261
(3 December 2021) at paragraph 25 where the full
Court succinctly noted;
"On this score,
it is trite law: that a court is vested with a discretion as to
whether to grant or refuse an amendment: that
an amendment cannot be
granted for the mere asking thereof- that some explanation must be
offered therefor: that this explanation
must be in the founding
affidavit filed in support of the amendment application: that if the
amendment is not sought timeously,
some reason must be given for the
delay: that that party seeking the amendment must show prima facie
that the amendment has something
deserving of consideration: that the
party seeking the amendment must not be mala fide: that the amendment
must not be the cause
an injustice to the other side which cannot be
compensated by costs: that the amendment should not be refused simply
to punish
the applicant for neglect and that mere loss of time is no
reason, in itself, for refusing the application."
[31]
The object of granting an application to amend is to obtain a proper
ventilation of the real
issues in dispute between the parties. When
an applicant seeks to bring an application to amend the pleadings,
there should be
valid justifiable reasons to support the application.
Both parties drew the Courts attention to the case of Moolman v
Estate Moolman
[9]
wherein the
Court noted that amendments would always be allowed, unless the party
seeking the amendment was
mala
fides
in
the application or it would result in an injustice to the other side,
which could not be compensated by a cost order.
[32]
The Defendants objection to the amendments sought was premised on the
argument that the Plaintiff
was seeking to introduce a new claim
against the 7
th
, 9
th
and 11
th
Defendants as sureties in terms of the instalment sale agreement. It
is not disputed that the suretyship agreements were signed
by the
three Defendants particularly in respect of the sale agreement,
concerning the said goods, in all three cases and that the
averments
currently in the particulars of claim, specifically the prayers
sought, was judgement against the 2
nd
to 11
th
Defendants, for the amount of damages, that the Plaintiff may have
suffered, to be postponed
sine die
pending the return of the
"goods" to the Plaintiff, the subsequent valuation and sale
thereof, and the calculation of
the amount to which the Plaintiff was
entitled, once that process was finalised.
[33]
The Defendants contended that the Plaintiff was not litigating in
good faith by the amendments
sought, on account that this suretyship
agreement signed by the 7
th
, 9
th
and 11
th
Defendants had prescribed. Moreover, if the Court granted the
application to amend, it would in effect be resuscitating the claim,
based on the suretyship agreement. This was prejudicial to the
Defendants and no cost order would suffice to offset that prejudice.
[34]
The Defendants indicated that there was no substantial application,
by the Plaintiff, before
the Court explaining why these amendments
were not included in the initial particulars of claim when Summons
was issued, and why
the amendments were being sought, so extremely
late in the proceedings.
[35]
In response the Plaintiff drew the Court's attention to the case of
Swartz v Van der Walt t/a
Sentraten,
[10]
where the Court dealing specifically with motion proceedings and
applications to amend in terms of Rule 28(4) did not require an
affidavit in support of the application unless substantial amendments
for example, a withdrawal of admissions, required a detailed
explanation for the said withdrawal. According to the Plaintiff
therefore, there was no need for a supporting affidavit and the
amendments sought were self-explanatory and sought in good faith.
[36]
When considering the argument raised by the Defendant this Court
agrees that the original Summons
and particulars of claim lacked
averments which were relevant for the Defendant's to properly, be
able to plead to those allegations.
It might have been due to an
oversight on the part of the drafter, but the Court could find no
malice, on the part of the Plaintiff,
to seek to have all the
relevant aspects, placed before the Court, by way of the amendments.
The Defendants refusal of the amendments,
based on the conduct of the
Plaintiff being malicious, holds no weight. If anything, this Court
noted that the initial omission,
place the 7
th
9
th
and 11
th
Defendants in a difficult position to
plead to the allegations, in that their liability, through the
suretyship agreement,
was not totally ventilated. It is these types
of circumstances, wherein the amendment sought to be granted, would
not be prejudicial
for the Defendants were in no worse position, than
they would have been in, if the pleadings in its amended form, had
been filed
in the first instance.
[37]
In so far as the allegation pertaining to the resuscitation of the
prescribed claim this Court
had regard to
Section 15(1)
of the
Prescription Act
[11
]
which is
headed "
Judicial
interruption of prescription
"
and it provides:
(1) The running of
prescription shall, subject to the provisions of subsection (2), be
interrupted by the service on the debtor
of any process whereby the
creditor claims payment of the debt.
[38]
The Plaintiff as highlighted earlier demanded and issued Summons
against all the Defendants,
in respect of the cancellation of the
agreement and the return of the goods. These proceedings emanated
from the breach of contract
by the Defendants in their non-compliance
in respect of the timeous and consistent payments. This resulted in
the institution of
proceedings, against the Defendants and the
Plaintiff seeking return of the good sold to the Defendants.
[39]
The application to amend contains the averments pertaining to the
suretyship agreement which
was being objected to. The Court needs to
determine whether as alleged by the Defendants, this is an
introduction of a new claim
against the Defendants specifically the
7
th
, 9
th
and 11
th
Defendants. This
Court cannot see how this argument can hold weight, as already from
the onset the three specific Defendants were
cited, in respect of the
damages component, which would only come into play once the returned
goods were evaluated, so that damages
could be ascertained if any.
[40]
This Court took cognisance of the argument made by the Plaintiff, to
the effect that there would
be greater prejudice suffered by the
Plaintiff, if the amendments were not granted, offset against the
Defendants who still had
the opportunity to plead to the amended
particulars of claim, where prescription could still be raised as a
defence, by the Defendants.
The Plaintiff drew the Courts attention
to the case of First Rand Bank Limited v Shosholoza Steel Suppliers
(Pty)Ltd
[12]
where the Court
noted,
"The
amendment does not introduce a new course of action. This is for two
simple reasons, and these are that;
(a)
at the time when the applicant instituted the claim it could not
define the damages without
first repossessing the item, for valuation
and sale of the items, and the ultimate calculation of the shortfall
for each item.
(b)
The suretyship agreement have already been alleged and proved in the
unamended particulars
of claim. While it is a claim based on the
suretyship agreement, it does not have independent existence in that
it is reliant on
the breach, of the instalment sale agreements by the
Second to Fifth Respondent's."
[41]
The Defendants argued that this case materially differed from the
case before Court, on the basis
that the suretyship was already
pleaded, which is not the case here. This may well be partly true,
but the prayer concerning the
postponement of the damages portion,
applied to all 11 Defendants. This Judgment fortified the principle
that damages could only
be established, once the repossessed item was
sold and the outstanding damages determined, this interrupted the
running of prescription
in terms of
Section 15(1)
of the
Prescription
Act which
puts to rest the objection raised by the Defendants. This
Court is satisfied that this objection must therefore fail.
Ruling:
[42]
In light of the fact that the Court was unable to find that the
Plaintiff was mala fide, in launching
the application and having
weighed up the prejudice of both parties in respect of the
application in terms of
Section 28
, the Court's ultimate goal is to
ensure that the parties have the opportunity to properly ventilate
the dispute between them, and
for the Court to be able to adjudicate
on the real issues so that justice is done. The discretion that the
Court has to refuse
or grant such an application, is not taken
lightly, and having considered the issues in all three cases the
granting of this application
would be in the interest of all the
parties, so that the real dispute can be ventilated.
Costs:
[43]
Both parties sought costs on a higher scale, if they were successful
in the litigation of these
proceedings. The Court takes cognizance of
the fact that costs are at the discretion of the Court. The
Defendants alleged that
no tender for costs were made by the
Plaintiff, even though it was the Plaintiff, who sought an
indulgence. The Defendants maintained
their justification for seeking
costs on a higher scale, if they were successful and the application
to amend was dismissed. The
Plaintiff argued that there was no merit
in the objection to the amendment and therefore cost should be
awarded to the Plaintiff
on a higher scale. Having taken these
arguments into consideration I believe it would be just and equitable
that there is no order
as to costs.
Order:
[44]
In the premise the application succeeds in respect of all three cases
namely:
Case number 7480/2020
Case number 7478/2020
Case number 7472/2020
The
following order is made:
[44.1] The application in
terms of
Rule 28
is granted.
[44.2] The Plaintiff is
to deliver the amended pages within 10 days of receipt of the Court
Order.
[44.3] No order as to
costs.
KL
PILLAY
ACTING
JUDGE OF THE HIGH COURT,
POLOKWANE;
LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF : Adv
Bresler
INSTRUCTED
BY
: Hack Stupel and Ross Attorneys
FOR
THE DEFENDANT : Adv J Prinsloo
INSTRUCTED
BY
: Tiaan Smuts Attorneys
DATE
OF HEARING
: 31 October 2024
DATE
OF JUDGEMENT : 22 November 2024
[1]
Cross v
Ferreira 1950(3) SA 443( C) at 447
[2]
Moolman
v Estate Moolman
1927 CPD 27
at 29
[3]
Act 68 of 1969
[4]
Trans-African Insurance Co Ltd v Maluleka 1959(2) SA273 (A) at
279(8)
[5]
ABSA Bank Ltd v Keet
2015 (4) SA 474
(SCA) at 481C-484A; par [20] to
(25]
[6]
First Rand Bank v Shosholoza Steel Suppliers (Pty)Ltd 2014 JDR 0623
(GSJ) paras 19-35
[7]
[2002]3 AIISA11(SCA)
[8]
1950(3) SA 443 (c)at 447
[9]
1927 CPD 27
[10]
1998 (1) SA 53(W)
[11]
Act No. 68 of 1969
[12]
2014JDR 0623 (GSJ)paragraph 29.