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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO : 68226/ 2010
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
Date : 27 March 2025
Signat ure: K. La M Manamela
In the matter between:
BLAIR ATHOLL HOMEOWNERS ASSOCIATION First Plaintiff
WRAYPEX PROPRIETARY LIMITED Second Plaintiff
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Defendant
DATE OF JUDGMENT : This judgment is issued by the Judge whose name is
reflected herein and is submitted electronically to the parties/their legal
representatives by email. The judgment is further uploaded to the electronic file of
this matter on Caselines by the Ju dge’s secretary . The date of the judgment is
deemed to be 27 March 2025.
JUDGMENT
Khashane Manamela , AJ
A : INTRODUCTION
A1 General
[1] This judgment relates to two interlocutory applications brought by the
defendant, City of Tshwane Metropolitan Municipality ( ‘Tshwane’ ), the defendant in
the action or main proceedings, on the eve of the trial (continuing) in a part -heard
matter initiated over a decade ago by t he first plaintiff, Blair Atholl Homeowners
Association NPC ( ‘Blair Atholl’) and t he second plaintiff, Wraypex (Pty) Limited .
Wraypex is not taking part in these applications and the action.
[2] The action by Blair Atholl concerns disputes on the quantity of water supplied
by Tshwane to and/or consumed by Blair Atholl estate and the charges associated
therewith. The action , actually, morphed from urgent proceedings launched in
December 2010 by Blair Atholl . In terms of an order granted - years later - on 17
April 2014 by Preller J the matter was referr ed to trial or arbitration .1
[3] The current interlocutory applications were brought by Tshwane for leave to
amend its pleadings, and for postponement of the trial. Both applications were
vigorously opposed by Blair Atholl on a number of grounds. I considered it opportune
and sound to deal with both applications b y way of this ( single ) judgment. The issues
in the applications are – to some considerable degree – inextricably intertwined,
although I have tried my earnest to deal with the applications under separate (and,
perhaps, self -explanatory) subheadings, as set out in the table of contents appearing
under this paragraph . The table provides a layout or quick guide on locating the
contents of the two applications, in dicating their joint and divergent areas .
1 Pars [ 8]-[28] below, for a brief background to the matter (i.e. Part B) .
Table 3: Layout or table of contents of the material in the applications for leave
to amend and for postponement
Item Paragraphs Issue Leave to
Amend Postponement
1. 1-3 A: INTRODUCTION
A1 General ✓ ✓
2. 4 A2 Application for leave to
amend (introduced) ✓
3. 5-7 A3 Application for
postponement of the trial
(introduced) ✓
4. 8-28 B: BRIEF BACKGROUND ✓ ✓
5. 29-95 C: APPLICATION FOR
LEAVE TO AMEND ✓
6. 96-101 D: APPLICATION FOR
POSTPONEMENT OF
THE TRIAL ✓
7. 102 E: CONCLUSION ✓ ✓
8. 103-104 F: ORDER ✓ ✓
9. 103 Leave to Amend Order ✓
10. 104 Postponement Order ✓
A2 Application for leave to amend (introduced)
[4] On 30 October 2024, just over three weeks before the continuation of the trial
in the action or part-heard matter, Tshwane launched the application for leave to
amend its plea dings (i.e. plea and counterclaim) . The application was heard on 21
November 2024, three days before the recomm encement2 of the ten-day trial, on 25
November 2024. Ms T Mkhwanazi appeared , jointly with Ms P Mathibela , for
Tshwane and Mr P Lourens appeared for Blair Atholl . Due to the significance of the
2 The trial in the matter was postponed in Term 4 of 2023 after a ten -day hearing. See par s [23],
[28], [96] et seq below.
issues to the parties and for future disposition of the matter , as well as the need for
the Court to properly reflect on same, this judgment was reserved. By that time, the
postponement of the trial had become inevitable.
A3 Application for postponement of the trial (introduced)
[5] In addition to seeking amendment of its papers, Tshwane applied for
postponement of the trial. A lead member (i.e. senior counsel) of Tshwane’s legal
team ha d withdrawn earlier in the month of November 2024 . He had been involved in
the matter for around te n years. Tshwane or its legal representatives have not
indicated the reason for the senior counsel’s withdrawal , but considerations to
replace him were – at some stage - indicated.
[6] The withdrawal of senior counsel became a cumulative factor (in Tshwane’s
application for postponeme nt) to the main issue : amendment of Tshwane’s
pleadings . Also, t he timing of the application to amend rendered the issue of the
postponement of the trial in November 2024 unavoidable . What remained of the
application for postponement was the determination of liability for costs and
associated issues. Consequently, it was agreed in one of the case management
meetings before the trial that there was no need for a formal application for
postponement of the trial, but only argument as to the costs occasioned by or
associated with the postponement.
[7] On 25 November 2024 - at the commencement of the trial - the Court heard
argument by counsel on the nature and extent of the liability for co sts of
postponement of the trial . The appearances were as in the application for leave to
amend, referred to above. After listening to submissions by counsel, I granted an
order for the trial to be postponed sine die . But, I considered it opportune – in the
wake of the reserved judgment in the application for leave to amend – to also defer
my ruling on the liability for costs of the postponement of the trial . One of the
considerations in this regard w as the implications of the tender of costs made b y
Tshwane to Blair Atholl about two weeks before date of trial. Therefore, in my view,
the issues did not take a conventional form and deserved of a further reflection.
Regret tably, it took longer than initially anticipated to hand do wn this judgment .
B : GENERAL BACKGROUND
[8] The issues to be determined in the current applications before the Court ,
particularly the application to amend, stretch over a decade back . Some brief
narration of the background to the matter is necessary to place context on the
issues. T he issues are - largely - common cause between the parties, or the
contrasting view would be highlighted.
[9] Blair Atholl approached this Court on an urgent basi s in December 2010 after
Tshwane had interrupted the water supply to the Blair Atholl estate .3 The parties
were at loggerheads with each other regarding the scale of tariffs applica ble for the
water suppl ied by Tshwane to the Blair Atholl estate. L itigation ensued when ,
apparently, Blair Atholl had not pa id its water bills received from Tshwane for about
two years. In the urgent court, Blair Atholl sought relief which - primarily – was in the
form of a declarator on the rate to be used by Tshwane to charge for water supplied
to Blair Atholl estate in terms of the Engineering Services Agreement (the ‘ESA’),
concluded between Tshwane and Wraypex, the developer of the Blair Atholl estate,
on 3 February 200 6. Blair Atholl claimed that - on a proper application of the terms of
the ESA - it ought to be charged at the rate used by Tshwane for bulk water supply
to other municipalities or local governments . The urgent application came before
Webster J (now late) in December 2010 , when Blair Atholl was ordered to make two
specified payments to Tshwane on specified dates and with Tshwane interdicted
from limiting or discontinuing water supply (as long as Blair Atholl has made the
payments) until the final disposal of the matter.
[10] Following the conclusion of the ESA and development of the Blair Atholl
estate, Blair Atholl , the homeowners association , was incorporat ed to legally
succeed Wraypex , the developer, as a party to the ESA and its ramifi cations .
Tshwane’s answer in the urgent application included a counter -application , also for
declaratory relief, for Blair Atholl to be declared in arrears in respect of accounts for
3 Par [ 30] below on what constitutes Blair Atholl estate.
the supply of water held with Tshwane and , consequently, that Tshwane be entitled
to restrict supply of water to Blair Atholl.
[11] A second urgent application in the matter later came before Preller J in
February 2011 when the parties concluded an interim agreement regarding water
supply . The learned judge pronounced on the application after period of more than
three years has elapsed on 17 April 2014 . Other than referring the matter to trial,
Preller J directed that Blair Atholl pay for water supplied to its estate by Tshwane at
the rate of ‘bulk supply ’ plus 10% , pending the conclusion of the action
(contemporaneously ordered) to evolve from the urgent motion . Costs of th e latter
were d eferred for determination by the trial court hearing the action betwee n the
parties.
[12] Pursuant to the judgment by Preller J, the action ensued when pleadings were
exchanged between the parties . The relief sought by Blair Atholl was the same as in
the urgent application , although Blair Atholl added , as an alternative, a prayer for
rectification of the ESA so that reference to ‘normal rate’ be altered to ‘ bulk normal
rate’ with regard to charges by Tshwane for water consumed by Blair Atholl .
Essentially, Blair Atholl sought to be charged by Tshwane under the category ‘bulk
water supply ’ to other municipalities .4 The main reason for this comes from the
history of the development of the Blair Atholl estate. Blair Atholl was responsible for
construction of the water supply infrastructure to its estate and remains responsible
for the internal water reticulation.
[13] Tshwane dispute d Blair Atholl’s claim , mainly , on the basis that the rate o r
scale insisted u pon by Blair Atholl for water supply charg es by Tshwane , was not in
accordance with the statutory or legal instrument s governing Tshwane’s water
supply . Tshwane also filed a counterclaim – in the main – seeking payment for water
supplied and charged at its rate of Scale D.
4 Tshwane ’s varying scale of rates for the supply of water , includ ing the following: (1) Scale A:
‘agricultural holdings and farm portions for residential purposes excluding consumers under
Scale C ’; (2) Scale B: ‘single dwelling -houses (metered separately by the Mun icipality and
excluding dwelling -houses from which an unregistered business is run) ’; (c) Scale D : All
Consumers Who Do Not Fall Under Scale A, B, C and E ’; (e) Bulk Water Supply to Other
Municipalities ’.
[14] Blair Atholl defended Tshwane’s counterclaim, among others , and replicated
that the invoked rate of water supply was in terms of special arrangements entered
into in terms of the ESA and that this is permissible in terms of the Municipal
Systems Act 32 of 2000 , les t the impu gned statutory or legal instruments are
contrary to the prescript of the Constitution of the Republic of South Africa, 1996
(‘the Constitution ’).
[15] The action ripened for trial before Murphy J. On 30 August 2017, t he learned
judge ordered a separation of issue s in terms of Uniform R ule 33(4) and decided the
issue of the applicable rate for water supply and interpretation of clause 6.16 of the
ESA, whilst postpon ing Tshwane’s counterclaims sine die . The learned judge held
that the ‘normal rate of the Municipality’ referred to in the ESA is the normal rate
charged for bulk water supply to other municipalities and, consequently, directed
Tshwane to render accounts to Blair Atholl using that rate .
[16] Dissatisfied with the judgment by Murphy J, Tshwane approached the
Supreme Court of Appeal of South Africa (‘the SCA’) . The SCA handed down its
judgment on 3 December 2018 in favour of Tshwane and, thus, upheld the appeal .
The order made by the SCA , reflected in its reported decision in City of Tshwane
Metropolitan v Blair Atholl Homeowners Association ,5 set aside the order by Murphy
J and declared that the ‘normal rate of a municipality ’ in the ESA is not the rate
charged for bulk water supply to other local governments . The SCA remitted the
remaining issues to th is Court for further hearing.6
[17] After the SCA judgment , the parties engage d in activities to get the matter
ready for trial again. In some respects , they sought to engage on some of the issues
to find a resolution in what I can label curtailment of the issues. These included case
management process overseen by Van der Schyff J.
[18] But t he parties a re said to have beg un discussions around the water
consumption and amounts owing by Blair Atholl to Tshwane as far back as March
5 City of Tshwane Metropolitan v Blair Atholl Homeowners Association [2019] 1 All SA 291
(SCA).
6 City of Tshwane v Blair Atholl [2019] 1 All SA 291 (SCA) [80].
2016 . Some form of agreement was apparently reached in April 2016 between the
parties (whereat Tshwane was represented by Ms Benita van Rede van Oudtshoorn
(conveniently - with respect – referred to as ‘Ms VRVO ’) and Blair Atholl was
represented by Mr Nico Maas (‘Mr Maas’)) based on reconciliation s provided by
Tshwane . According to Tshwane , the agreement reached formed a basis upon which
the parties agreed to a separation of issues in terms of Rule 33 (4), which included
the quantity of bulk water supplied by Tshwane to Blair Atholl ,7 although the rate or
tariff of the water supply charges re mained a h otly contested issue between the
parties . As indicated above , the judgment by Murphy J decided the matter on a
limited basis and was successfully taken on appeal to the S CA by Tshwane .8
[19] On 7 July 2021 , Ms VRVO , from the billing and invoicing department of
Tshwane, sent an email to functionaries of Blair Atholl including Mr Maas with
attachments in the form of figures or reconciliations for water supplied and/or
consumed by Blair Atholl according to Tshwane .9 Mr Maas responded to the email
by Ms VRVO on the same date stating the following:
Benita, from your spreadsheet, copy attached, the total consumption
through all the meters at Blair Athol since inception up to 6 July 2021,
the following summary:
1 Total consumption through m eters for account ending in 3576
= 2 082 379 kl
2 Total consumption through m eters for account ending in 4851
= 757 714 kl
3 Total consumption through both met ers
= 2 840 093 kl
Are these the figures you wish us to confirm?10
[20] Ms VRVO , also, replied to Mr Maas in the evening of the same date with a
‘Yes’ and the conversation concluded on 8 July 2021 with Mr Maas saying :
7 Par [15] above on the separation of issues in terms of Rule 33(4).
8 Pars [15] -[16] above.
9 Founding Affidavit (‘ FA’), annexure ‘ARA4’, CaseLines 029 -129.
10 FA, annexure ‘ARA4’, CaseLines 029 -128.
Thanks Benita, there is then not much to discuss about the monthly or
annual consumption.
We accept the total consumption through all the meters from 31
March 2008 to 6 July 2021 to be 2 840 093 kilolit res (Two million
Eight Hundred and Forty Thousand and Ninety Three kilolitres) .11
[21] The email conversation between Ms VRVO and Mr Maas is pivotal to the
current application for leave to amend by Tshwane and Blair Atholl’s opposition
thereof. What was ultimately agreed between these two functionaries on behalf of
their respective principals (i.e. Tshwane and Blair Atholl) is conveniently referred to
as ‘the July Agreement’ .
[22] The next month in August 2021 the legal representatives for the parties held a
pre-trial conference . The terms of ‘the July Agreement’ were confirmed at the pre-
trial conference . The latter confirmation is referred to by Blair Atholl as ‘the August
Pretrial Agreement’. I agree with Tshwane that the so-called ‘the August Pretrial
Agreement’, essentially, was a confirmation of ‘the July Agreement’ , as opposed to a
new agreement reached between the legal representatives . But not much would
really turn on this and in a quest to comport with the adopted references, I retained
references to ‘the August Pretrial Agreement’ .
[23] Fast forward to 2023. The matter came before me for trial scheduled to run for
ten days from 13 to 24 November 2023 ( ‘the 2023 hearing ’). The trial in the 2023
hearing proceeded - albeit with conventional challenges, but on the tenth day the
proceedings halted at the beginning of the day due to an unfortunate incident
(outside of the Court the previous afternoon) involving Tshwane’s erstwhile senior
counsel. By then Blair Atholl had closed its case - in the main - save for what it
labelled a rebuttal witness , still to be called . Tshwane had also tendered the
evidence of two witnesses and was busy with that of its third witness . On the tenth
day, on 24 November 20 23, the trial in the 2023 hearing was postponed sine die with
wasted costs o f the tenth day reserved.
11 FA, annexure ‘ARA 4’, CaseLines 029 -127.
[24] On 17 May 2024 , I convened a case management meeting in the matter
attended by both teams of legal representatives . This was to ensure that the matter
will be ready to run (by way of a trial), once allocated. Of greater significance for
current purposes, was the agree ment reache d at th e meeting that any interlocutory
issues or applications which may arise between the parties should be d isposed of
during the third term of 2024 (i.e. 22 July to 22 September 2024 ). The parties had
confirmed availability for a hearing or trial in the matter in the fourth term of 2024.
Ultimately, the matter was enrolled for ten-day trial from 25 November 2024 .
[25] On 30 September 2024, Tshwane deliver ed a notice of intention to amend its
plea and counterclaim (‘the Notice to Amend’) . This was objected to by Blair Atholl
on 14 October 2024 (‘the Objection’).
[26] On 30 October 2024, the application to amend ensued. It was initially to be
heard on 19 November 2024, but could not proceed on that day due to the
unavailability of Tshwane’s counsel. I deal with the latter aspect - for purposes of
costs of the application - below.12 As stated above, the application for leave to
amend was heard on 21 November 2024, when this judgment was reserved .
[27] On 8 November 2024 , Tshwane had tendered to Blair Atholl – through their
respective legal representatives – the costs occasioned by the amendment sought
and wasted costs for the postponement of the trial. Evidently, there was no
agreement reached in this regard.
[28] On 25 November 2024 , the trial in the part-heard matter was postponed sine
die. This followed an application for postponement also at the instance of Tshwane.
The postponement of the action was ordered and the only issue outstanding in that
regard relates to costs occasioned by the postponement. This application is dealt
with below, aft er the application for leave to amend , to which I turn , next .
C : APPLICATION FOR LEAVE TO AMEND
12 Par [ 95] below.
C1 Pleadings currently before the Court (i.e. prior to the amendment
sought )
[29] As indicated in the background, although Blair Atholl commenced these
proceedings by way of urgent motion , the proceedings were converted into an action
by an order of th e Court .13
[30] In terms of the (consequential) declaration delivered on 30 May 2014 , Blair
Atholl , is the first plaintiff , and Wraypex was cited as the second plaintiff . Wraypex is
the developer of the townships in the Blair Atholl e state comprising Blair Athol
Extensions 1, 2, 3 and 4 , situated within Tshwane ’s jurisdiction , and other townships
in the Mogale City Municipality .
[31] In its declaration, Blair Atholl – in short – asserts that it is only liable to pay
Tshwane for water and other services received from Tshwane to the extent that Blair
Atholl is a consumer of such services , as envisaged by relevant legislati on. Blair
Atholl contends that i t is not liable for water and other services provided by Tshwane
to the owners of erven or residential units (‘homeowners’) within the Blair Atholl’s
estate. Also, that the ESA does not bind Blair Atholl to collect payments due by the
homeowners for services provided to them by Tshwane . For such an obligation to
arise Tshwane requires service delivery agreement s with the homeowners . It is also
argued that, Tshwane – and not Blair Atholl – has an obligation to provide municipal
services to the homeowners in terms of the law. Any provisions in the ESA placing
such obligation on Blair Atholl would be unlawful and , therefore , invalid.
Consequently, Blair Atholl seeks declar atory relief to that effect. Another term of the
relief sought by Blair Atholl is that Tshwane ought to charge for municipal services it
provide s to Blair Atholl and the homeowners at the ‘normal rate ’, as well as costs of
the litigation in the action (to which this application relates) and the other motion
proceedings under case number 9654/2013 .14
[32] Tshwane denies the assertions by Blair Atholl. It deni es that the ESA is not a
service delivery agreement envisaged by the relevant legislation. Tshwane says that
13 Pars [2] and [11] above.
14 Relating to the u rgent application before Southwood J on 14 February 2013 .
in February 2008 it received two written applications from Blair Atholl for the supply
of water to Blair Atholl . Blair Atholl also paid the requisite deposit and the
application s were approved by Tshwane . These led to the two accounts being
opened for the supply of water , including account number 5[...]2 (‘the 3576 account’)
which is of particular relevance to th is application . Accordingly, the supply of water is
in accordance with the terms of the two applications . Tshwane , in terms of the
applications, supplied Blair Atholl with bulk water through the specific met ers in
respect of the two account s (i.e. account number 5[...] and the 3576 account ). After
the accounts were opened , tax invoices or statements of account were issued by
Tshwane to Blair Atholl for the water consumption in respect of the account s,
including those dated 6 July 2021 and 15 July 2021.15 It is the water consumption
indicated in th e latter statements which were admitted at the case management
meeting of 16 August 2021 , including the tally of 2 082 379 kl for the 3576 account
for the First Period (i.e. since inception to 6 July 2021 ).
[33] Blair Atholl is the supplier of water to the home owners within the estate
through its own ‘ operated and maintained … internal water supply system ’.16 Blair
Atholl , as averred by Tshwane, issued tax invoices and statements of account to the
home owners within its estate and received payment f or same . Tshwane says it has
always understood the dispute with Blair Atholl (until the declaration was amended)
to be only about the applicable tariff to be used for the water charges and never that
Blair Ath oll had no agreement with Tshwane for the water suppl ied and the liability
there for. Therefore, a ccording to Tshwane, Blair Atholl owes or owed Tshwane the
amount of R10 186 768.63 in respect of account number 5[...], due and payable on
29 July 2021 , and the amount of R44 797 243.38 in respect of the 3576 account , due
and payable on 5 August 2021 .
[34] Tshwane , significantly, repeats in the counterclaim what is stated in its plea .
The counterclaim was amended during the 2023 hearing , consequentially , to Blair
Atholl’s amendment of its declaration.
15 Annexure s ‘CTM8 ’ and ‘CTM9 ’.
16 Tshwane’s Plea and Counter claim at par 28.5.4, CaseLines 018-119.
[35] Tshwane’ s counterclaim comprises two claims . Claim 1, set out in the latter
part of paragraph [33] above , is for water supplied to Blair Atholl at Tshwane’s
normal tariff and for administrative fees and interest levied in terms of the by-laws.
Claim 2 is for confirmation (or declaration) that Tshwane – in terms of the law – has
a statutory right to restrict or disconnect the supply of water and other services to
Blair Atholl estate , when Blair Atholl, as a consumer , among others, fail to make full
payment on the due date or to make acceptable arrangements for the repayment of
any outstanding amounts for services rendered .
[36] Blair Atholl dispute s the averments in Tshwane’s Plea and Counterclaim. It is
also fair to mention that there are further issues (in the pleadings ) than what is
reflected above. I only wanted to reflect the pertinent issues in the pleadings for
current purposes .
C2 Notice to amend /application to amend
[37] Tshwane ’s intended amendment is directed towards its plea and
counterclaim . This pleading , as indicated above, was previously amended during the
2023 hearing . There were also consequential adjustments to Blair Atholl ’s pleadings .
Blair Atholl included reliance on the July Agreement and the so-called ‘August
Pretrial Agreement ’, as part of its defence to Tshwane’s amended counter claim.
[38] Tshwane , now, wants to amend its plea to ‘correct ’ the July A greement and
record the total water consum ed by or supplied to Blair Atholl on the 3576 account
for the First Period as 3 082 379 kl , instead of 2 082 379 kl . Notably, the difference
between the two figures is 1 million k l of water. Tshwane says the l ower figure is
incorrect and was the result of a bona fide mistake on the part of its Ms VRVO when
reaching the July A greement with Blair Atholl’s Mr Maas in respect of total
consumption for the First Period . Tshwane, also, refers to the situation which led to
what it calls ‘incorrect’ or mistaken recording of the kilolitres reading , as a ‘mutual
justus error between the parties ’.17 According to Tshwane the total water supplied to
Blair Atholl on the 3576 account from inception to 9 September 2023 (i.e. beyond the
17 FA par 26.6, CaseLines 029 -44.
First Period) is 3 523 352 kl. Tshwane also want s to correct the references to
annexures to its pleadings .18 The latter issue appears not to be opposed by Blair
Atholl .
[39] Tshwane explains the ‘incorrect’, ‘mistaken’ or erroneous recording as being
the result of ‘10 clock overs ’ of 100 000 kl each on meter number 1[...] which allowed
for 5 digits and consequently could only allow measur ing a maximum of 99 999 kl of
water before it ‘clocked over ’ to zero .19 This led to an incorrect assessment of the
actual consumption on the 3576 account . The so-called ‘clock overs ’ were not
included by the parties in calculating the water usage/consumption for the First
Period in respect of the 3576 account , Tshwane continues . According ly, there was a
mutual error or iustus error as the parties ’ representative s were both of the view that
the actual consumption on the 3576 account was 2 082 379 for the First Period , as
borne by the ir e-mails. Tshwane , further, says that the quantity of kiloliters consumed
was not in the circumstances a settlement of a disputed quantity after a negotiated
bargaining process . And, on the other hand , Mr Maas did not strike a bargain in the
sense that there was one or other discount in consumption units given to Blair Atholl
by Tshwane. What is attempted to be placed before the Court through the intended
amendment is the true consumption figures in respect of the 3576 account , the
contention by Tshwane concludes .
C3 Blair Atholl ’s grounds of objection
[40] Blair Atholl ’s Objection to Tshwane’s proposed amendment is based on six
grounds , which may be summarised as follows: (a) First ground . The July Agreement
and the August Pretrial Agreement subsequently incorporated into the pleadings
constitute a ‘compromise’ of Tshwane ’s claim for th e First P eriod . (b) Second
ground . The proposed amendment seeks to ‘impermissibly’ ‘avoid, set aside, rescind
or resile ’ from the August Pretrial Agreement and constitutes a withdraw al of factual
admission(s) by Tshwane . (c) Third ground . There are no allegations to sustain the
iustus error contended for by Tshwane in respect of the August Pretrial Agreement.
18 Notice of Motion par 1 of the amendment on p 2, CaseLines 029 -2.
19 The ten clock overs are said to have occurred from the 28th of October 2011 and 29th July
2015. See FA pars 31 -33, CaseLines 029 -52 to 029 -54.*
The requirements for a defence of iustus error are lacking, alternatively there are
insufficient allegations to establish such a defence , including in the proposed
amendment. (d) Fourth ground . Rectification of the August Pretrial Agreement is
impermissible . This ground was later abandoned when it became clear that it wasn’t
implicated in the proposed amendment. (e) Fifth ground . Any claim which Tshwane
may have had based on the 1 million kilolitres of water has prescribed after a period
of three years from the August Pretrial Agreement. (f) Sixth ground . The proposed
amendment would introduce material in conflict with the evidence already on record
and Tshwane does not have evidence to establish the allegations to be introduced
by the proposed amendment . Also, the amendments sought are objectionable due to
their timing (i.e. at an advanced stage of the trial and after ‘extensive evidence’ has
been led by both parties ) and implications (i.e. leading of further evidence and even
the calling and r ecalling of witnesses ). Overall , the amendment sought is n ot bona
fide and would be prejudicial to Blair Atholl , if allowed .
C4 Issues requiring determination
[41] From what appears above, the following appear s to be issues which ought to
be determin ed to dispose of th is application : (a) was ‘the July Agreement’ or ‘the
August Pretrial Agreement’ a ‘compromise’ of Tshwane ’s claim; (b) is ‘the August
Pretrial Agreement ’ incapable of variation or being s et aside or for Tshwane to resile
from it; (c) can Tshwane ’s proposed amendment withdraw any factual admission
made ; (d) was ‘the July Agreement’ and/or ‘the August Pretrial Agreement ’
concluded due to a iustus error and is this defence borne by the proposed
amendment ; (e) did a claim for the 1 million kilolitres prescribe , and ( f) will the
propos ed amendment introduce material conflict ing with the evidence already on
record ; (g) does Tshwane have evidence to support the proposed amendment ; (h)
the timing of the amendment and its implications; ( i) is the amendment bona fide ,
and (j) will Blair Atholl be prejudiced .
[42] A further issue requiring determination is the recalling of Ms VRVO to testify
on the correct total water consumed by Blair Atholl on the 3576 account for the First
Period. Leave will only be granted in this regard if the amendment is permitted,
otherwise the door is closed for Ms VRVO’s return .
[43] The above issues are discussed below , in s ome instances jointly due to
interlinkages. But I do so after looking at some of the legal principles applicable to
the issues.
C5 Applicable legal principles
General
[44] The central legal principle to this application is Uniform Rule 28 of this Court
governing amendment of pleadings and other documents , including its subr ule (10)
providing for amend ments at any stage of proceedings before judgment .
Basic principles to amendments
[45] The b asic principles on the Court’s discretion whether to grant or refuse leave
to amend are accurately summarised in the durable decisions in Trans -Drakensberg
Bank v Combined Engineering20 and Commercial Union Assurance v Waymark ,21
some of which are dealt with below , and emulated in other decisions .22 The
discretion , no doubt, is to be exercised judicially on the basis of all the facts of a
matter before the Court.23 The principles gained the endorsement of the
Constitutional Court in Affordable Medicines Trust v Minister of Health .24
20 Trans -Drakensberg Bank Ltd ( under judicial management) v Combined Engineering (Pty) Ltd
and another 1967 (3) SA 632 (D) at 640H -641C .
21 Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (Tk) at 77F -I.
22 Caxton Ltd and others v Reeva Forman (Pty) Ltd and another 1990 (3) SA 547 (A) at 565G ;
Benjamin v SOBAC (Pty) Ltd 1989 (4) SA 940 (C) at 957G -H; Magnum Simplex International
(Pty) Ltd v MEC Provincial Treasury, Provincial Government of Limpopo (556/17) [2018]
ZASCA 78 (31 May 2018) [9]. See also DE van Loggerenberg, Erasmus: Superior Court
Practice (Revision Service 24, 2024 , Jutastat October 2024) (‘ Erasmus: Superior Court
Practice ’) RS 25, 2024, D1 Rule 28 -6 et seq ; Cilliers, AC, Loots, C and Nel, HC. Herbstein and
Van Winsen: Civil Practice of the High Courts and the Supreme Court of Appeal of South
Africa , 5th edition, Jutastat (November 2021) at 675 -693.
23 GMF Kontrakteurs (Edms) Bpk and another v Pretoria City Council 1978 (2) SA 219 (T) at
222B –D; Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en 'n ander 2002 (2) SA 447 (SCA)
[33]. See generally Herbstein & Van Winsen Civil Practice at 676 ; Erasmus: Superior Court
Practice RS 25, 2024, D1 Rule 28 -5.
24 Commercial Union Assurance v Waymark 1995 (2) SA 73 (Tk) at 76 -77; Affordable Medicines
Trust and others v Minister of Health and others 2006 (3) SA 247 (CC) [9].
[46] The primary consideration in allowing amendment of pleadings or documents
is to ensure ‘proper ventilation of the dispute between the parties, to determine the
real issues between them, so that justice may be done ’.25 Further principle s or
considerations include : (a) to do justice between the parties; (b) to provide the Court
with a true account of the facts in a matter , and (c) not to elevate a mistake made by
the one party to entitle the other party to a claim of forfeiture.26 The focus of the
Court in leave to amend is on the real position beyond the clo ud of issues of a
technical nature .27
[47] These principles are not to be understood to be elevating leave to amend to
an enforceable right . It will always be an indulgence to be justified by the s eeker.28
But, the seeker should not be relegated to someone approaching the Court ‘ cap in
hand, seeking mercy for his mistake or neglect ’.29 For the Court is not to refus e leave
merely to punish a neglect ful litigant ,30 lest the whole exercise is tainted by elements
devoid of judici ousness .31
[48] The touchstone for the grant or refusal of leave to amend is prejudice .32 An
amendment should be refused if it would result in prejudice or injustice incapable of
being cured or eliminat ed by an award of costs and , where appropriate , a
postponement of the matter.33 Prejudice may be eliminat ed wholly or at least
materially or substantially so.34
25 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 638A. See also
Benjamin v S OBAC 1989 (4) SA 940 (C) at 957I; Commercial Union Assurance Co Ltd v
Waymark NO 1995 (2) SA 73 (Tk) at 76-77; Randa v Radopile Projects CC 2012 (6) SA 128
(GSJ) [7].
26 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 638 , 640E -F and the
authorities cited ther e; Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co
(Pty) Ltd 1978 (1) SA 914 (A) at 928D.
27 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 638 , 640E -F.
28 Benjamin v SOBAC 1989 (4) SA 940 (C) at 957 I-J.
29 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 640 -641.
30 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 639B.
31 GMF Kontrakteurs v Pretoria City Council 1978 (2) SA 219 (T) at 222B –D; Ciba-Geigy v Lushof
Farms 2002 (2) SA 447 (SCA) [33]. See generally Herbstein & Van Winsen Civil Practice at
676.
32 Benjamin v SOBAC 1989 (4) SA 940 (C) at 957J -958A. See also Trans -Drakensberg Bank v
Combined Engineering 1967 (3) SA 632 (D) at 640.
33 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 638A , 640E -F. See
also Moolman v Estate Moolman and another 1927 CPD 27 at 29; Cross v Ferreira , 1950 (3)
SA 443 (C) at 447 ; Randa v Radopile Projects 2012 (6) SA 128 (GSJ) [7], [12] .
34 Benjamin v SOBAC 1989 (4) SA 940 (C) at 957H.
[49] It is also material to determi ne whether an amendment is sought bona fide or
not.35 In determining whether an application is sought bona fide the following is
material : (a) new material facts which arose or bec ame known making the
application to amend necessary; (b) timeous application, and (c) whether the
amendment would result in injustice (as with prejudice) which cannot be avoided by
a postponement or an award of costs .36
[50] The amendment , also, ought to have a reason and prima facie ‘something
deserving of considerat ion, a triable issue ’, lest it constitutes an impermissible
harass ment of an oppo nent due to lack of a foundation.37 The amendment ought to
contribute to the real or genuine issues between the parties.38 Otherwise , such
amendment would only prolong and complicate the proceedings to the prejudic e
(due to expenditure of time and money) of the opposing party facing such an
amendment .39
[51] There ought to be supporting evidence for the issues in the amendment ,
where evidence is required for an issue material to the amendment.40 In other words,
the facts, as set out in the papers , ought to bear out the i ntended amendment , lest it
constitutes an intolerable abuse of process.41
[52] An amendment which would introduce a new factor into a matter would not be
allowed if it would prejudice the opposing party by, for example, requiring that a
witness - who had not yet been called - be called .42 The Court will allow all forms of
35 Moolman v Estate Moolman at 29, cited with approval in Trans -Drakensberg Bank v Combined
Engineering 1967 (3) SA 632 (D) at 640. See also Benjamin v SOBAC 1989 (4) SA 940 (C) at
957H and Randa v Radopile Projects 2012 (6) SA 128 (GSJ) [12], where reference is made to
several authorities .
36 Greyling v Nieuwoudt 1951 (1) SA 88 (O) at 91 ; Trans -Drakensberg Bank v Combined
Engineering 1967 (3) SA 632 (D) at 640H. See also Zarug v Parvathie NO 1962 (3) SA 872 (D)
at 876B -C on necessity of an amendment.
37 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 641A. See Caxton v
Reeva Forman 1990 (3) SA 547 (A) at 565G -566B.
38 Benjamin v SOBAC 1989 (4) SA 940 (C) at 958A -C.
39 Benjamin v SOBAC 1989 (4) SA 940 (C) at 958A -C.
40 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 641A -B. See Caxton
v Reeva Forman 1990 (3) SA 547 (A) at 565G -566B.
41 Erasmus: Superior Court Practice RS 23, 2024, D1 Rule 28 -3 and the authorities cited there .
42 Randa v Radopile Projects 2012 (6) SA 128 (GSJ) [6], citing with approval from Robinson v
Randfontein Estates GM Co Ltd 1925 AD 173.
amendment s – including drastic ones – provided they do not r aise new question
which the o pposing party would not be prepared to meet .43
[53] In addition to the principles permeating into the substance of the amendment,
there are principles applicable to the timing of or stage in the proceedings at which
the amendment is sought . This is foreshadowed by Rule 28(10) allow ing - in
principle – the granting of leave to amend at any stage of the proceedings , before
judgment.44 But, delay ing an amendment sought until late in the proceedings is not
without risks .45 The mischief guarded here is catch ing one’ s opponent off guard by
knowingly refrain ing from or delay ing to propose an amendment until late in the
proceedings .46 This, however, does not entitle the opposing party to base its
objecti on to an amendment solely on the delay or late timing of the request for leave
to amend.47 For the courts do not promote ‘ an overly formal approach ’ entrenched
against amendments made late in the proc eedings , as this would allow substance of
the process to yield to form.48 Again, the primary issue remains whether prejudice
would be visited upon the opposing party by allowing the amendment .49
[54] The issue of d elay was authoritatively dealt with in Randa v Radopile Projects
CC50 where the court aptly observed that : ‘the commencement of a trial is the
fulcrum upon which the courts’ stance in respect of applications for amendments to
pleadings should be balanced ’.51 Further, it was observed that a n amendment which
is sought late , for example, at the trial stage of the p roceedings , may be considered
mala fide .52
43 Zarug v Parvathie NO 1962 (3) SA 872 (D) at 876A -B, as quoted in Lizinex (Pty) Limited v FPC
Solutions (Pty) Limited and Others (2022/17136) [2023] ZAGPJHC 1261 (3 November 2023)
[22].
44 Pars [44] -[45] above.
45 Middleton v Carr 1949 (2) SA 374 (AD) at 385-386.
46 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 641B, relying on
Florence Soap and Chemical Works (Pty) Ltd v Ozen Wholesalers (Pty) Ltd 1954 (3) SA 945
(T) at 947H -948B.
47 Randa v Radopile Projects 2012 (6) SA 128 (GSJ) [13] and the other cases cited there.
48 Four Tower Investments (Pty) Ltd v André’s Motors 2005 (3) SA 39 (N) [19]; J R Janisch (Pty)
Ltd v W M Spilhaus & Co (WP) (Pty) Ltd 1992 (1) SA 167 (C) at 169H.
49 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 642 C -D.
50 Randa v Radopile Projects 2012 (6) SA 128 (GSJ) .
51 Randa v Radopile Projects 2012 (6) SA 128 (GSJ) [4]-[5], [17].
52 Randa v Radopile Projects 2012 (6) SA 128 (GSJ) [17].
[55] Other principles relating to the granting of leave to amend late in the
proceedings include the following: (a) Leave is not to be refused solely on the ground
that it would lead to the reopening of the case for further evidence to be led , unless
such evidence was deliberate ly omitted by t he applicant for leave .53 (b) Leave is not
to be granted ‘for the mere asking’ , but there should be an explanation for seeking
the amendment and where the amendment was not timeously sought there ought to
be reasonable and sat isfactory grounds for the delay ,54 which delay, as already
mentioned,55 ought not to result in prejudice to the other party .56
[56] The above general principles reflect the so -called liberal approach to
amendments.
Formal agreements, admissions and concessions made within the context of
litigation
[57] Blair Atholl, also, objects to the amendment sought by Tshwane as according
to Blair Atholl same would amount to the withdraw al of a factual a dmission made in
terms of ‘ the August Pretrial Agreement’ and even during the 2023 hearing .
[58] Admissions made in pleadings can be withdrawn similarly to any other form of
amendment.57 But, the principle relating to the withdrawal of admissions includes
that a party is not permitted to withdraw an admission a lready made without a full
and satisfactory explanation. This does not suggest a special basket made up of
amendments concerning withdrawal of admissions.58 The test or primary principle
remains the likelihood of prejudice and injustice.59
[59] Besides withdraw al of admissions, there are w ithdraw als of material
generated at pre-trial conferences . The decision of the SCA in MEC for Economic
53 Myers v Abrahamson 1951(3) SA 438 C at 45 1A-D.
54 Zarug v Parvathie NO 1962 (3) SA 872 (D) at 876C -D.
55 Par [ 53] above.
56 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 642H.
57 President -Versekeringsmaatskappy Bpk v Moodley 1964 (4) SA 109 (T) at 110H -111A.
58 Ibid.
59 J R Janisch v W M Spilhaus & Co (WP) 1992 (1) SA 167 (C) at 170 et seq. See also President -
Versekeringsmaatskappy v Moodley 1964 (4) SA 109 (T) at 110 -111 on issue of prejudice.
See also par [ 48] above.
Affairs, Environment and Tourism, Eastern Cape v Kruizenga and another60 has
useful aids . It concerned the issue whether a party may resile from an agreement
entered into at a pre -trial conference by such party’s attorney, without its knowledge .
The SCA held that a dmissions of a factual nature made at a pre-trial conference
amount to sufficient proof of the material facts.61 Therefore, a party may only resile
from a pre-trial conference agreement deliberately concluded only on special
circumstances .62 The principle finds more forceful application where the pre-trial
conference agreement is confirmed in court and , consequently, made an order or
judgment of a court .63
[60] The enquiry includes whether a party desirous of resiling from an agreement
led its opponent into reasonably believ ing that it was binding itself.64 The fact that the
impugned agreement was made over a lengthy period of time is also relevant. A
defeat of the objective of pre-trial conference s of encourag ing settlements ought to
be vigorously avoided, so that the conduct of civil trials is not severely hamper ed.65
[61] On concessions made in court, the Constitutional Court in Seebed CC t/a
Siyabonga Convenience Centre v Engen Petroleum Limited66 confirmed the principle
that a c ourt is not bound by a legal concession made in a matter before it , where
such concession is considered by the court to be wrong in law , but concessions of
fact are, generally , accepted without the court deciding on the material issues
further , as they effect ively place the conceded facts beyond dispute.67 This rule also
applies to legal concessions ‘properly made’ in the view of the c ourt.68 But a
concession made by counsel on a point of law may be withdrawn where the
60 MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Krui zenga and another
2010 (4) SA 122 (SCA) (‘MEC , EC v Kruizenga 2010 (4) SA 122 (SCA) ’).
61 MEC, EC v Kruizenga 2010 (4) SA 122 (SCA) [6].
62 MEC, EC v Kruizenga 2010 (4) SA 122 (SCA) [6]. See also Filta-Matix (Pty) Ltd v Freudenberg
and Others 1998 (1) SA 606 (SCA) at 613 H- 614D.
63 MEC, EC v Kruizenga 2010 (4) SA 122 (SCA) [6].
64 MEC, EC v Kruizenga 2010 (4) SA 122 (SCA) [20].
65 MEC, EC v Kruizenga 2010 (4) SA 122 (SCA) [21].
66 Seebed CC t/a Siyabonga Convenience Centre v Engen Petroleum Limited (CCT 290/20)
[2022] ZACC 28; 2023 (12) BCLR 1535 (CC) (20 July 2022) .
67 Seebed v Engen Petroleum [2022] ZACC 28; 2023 (12) BCLR 1535 (CC) [49]; Matatiele
Municipality and others v President of the R SA and others 2006 (5) SA 47 (CC) [67]; Kruger v
President of Republic of South Africa 2009 (1) SA 417 (CC) [102].
68 Seebed v Engen Petroleum [2022] ZACC 28; 2023 (12) BCLR 1535 (CC) [49]; Kruger v
President of Republic of South Africa 2009 (1) SA 417 (CC) [102].
withdrawal cause s no prejudice to the other party .69 Concessions of fact are
binding ,70 subject to what I turn to next .
Legal principles regarding iustus error in relation to agreements
[62] The principles applicable to iustus error ,71 particularly in settlement
agreements, were usefully summarised by the S CA in MB v RM72 as follows :
[62.1] Generally , settlement agreement s are in the form of compromise
between parties desirous of avoid ing protracted and expensive litigation , as it
is essen tially a compromise ( i.e. transactio )73 or final settlement by agreement
of uncertain or disputed rights or obligations or, where it says so,
exting uishing of the disputed rights or obligations.74 Its purpose is to avoid or
terminate litigation and has the effect of res iudicata .75 This, in my view, is put
in a proper context by the following dicta from Estate Erasmus v Church :76
A transaction [sic] is an agreement between two or more persons,
who, for preventing or ending a law suit, adjust their differences by
mutual consent, in the manner which they agree on; and which every
one of them prefers to the hopes of gaining, joined wi th the danger of
losing .77
69 Seebed v Engen Petroleum [2022] ZACC 28; 2023 (12) BCLR 1535 (CC) [49]; Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd 2014 (5) SA 138
(CC); 2014 (3) BCLR 265 (CC) [55].
70 Seebed v Engen Petroleum [2022] ZACC 28; 2023 (12) BCLR 1535 (CC) [49] .
71 ‘Iustus error ’ is described as ‘ reasonable, pardonable error ’ in VG Hiemstra and HL
Gonin, Trilingual Legal Dictionary (3rd edn, Juta 1992).
72 M.B v R .B (259/2023) [2024] ZASCA 116 (24 July 2024).
73 ‘Transactio ’ is explained as ‘ settlement of a suit or matter in controversy (by the parties
themselves, without arbiters)’ in Hiemstra and Gonin, Trilingual Legal Dictionary . See further
par [65] below.
74 MB v RB [2024] ZASCA 116 [9].
75 MB v RB [2024] ZASCA 116 [9] . See also Gollach & Gomperts (1967) v Universal Mills &
Produce Co 1978 (1) SA 914 (A) at 922 C; Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA
283 (T) at 286F; Mafisa v Road Accident Fund and another 2024 (4) SA 426 (CC) [48]; Road
Accident Fund v Taylor and Related Matters 2023 (5) SA 147 (SCA) [36] ; Eke v Parsons 2016
(3) SA 37 (CC) [25] et seq . See also Slabbert v MEC for Health and Social Development of
Gauteng Provincial Government (432/2016) [2016] ZASCA 157 (3 October 2016) [7]; Bradfield,
Christie’s Law of Contract at 557.
76 Estate Erasmus v Church 1927 TPD 20.
77 Estate Erasmus v Church 1927 TPD 20 at 24 . See also Gollach & Gomperts (1967) v Universal
Mills & Produce Co 1978 (1) SA 914 (A) at 921 C-D and also at 923C -D.
[62.2] The grounds upon which a party can resile from a contract on the
basis of a mistake are very limited and include fraud and iustus error vitiating
true consent and not merely concerning merits of the dispute.78 But these are
not the only grounds.79
[62.3] An error can be said to be iustus where the party trying to resile has by
mistake – caused by an innocent or fraudulent misrepresentation of the other
party – bound itself to the agreement.80 A mistake implies a
‘misunderstanding, misrepresentation, and resultant poor judgment’.81
[62.4] The test for withdrawal on the basis of an error or mistake is whether
the party whose actual intention is said not to be conform ing with the
expressed common intention led the other party – considered as a reasonable
person - to believe that its declared intention represented its actual intention .82
The test involves a three -legged enquiry : (a) was the intention of one of the
parties m isrepresent ed; (b) who was responsible for the representation , and
(c) was the other party misled by the representation (i.e. was the party
actually misled and would a reasonable person have been misled ).83
[62.5] No misrepresentation , which qualif ies as iustus error , exists where a
party has, subsequently had a change of heart and belief about a settlement
agreement reached after protracted negotiations between the parties and
made an order of court. It does not matter that the party impeaching the
contract genuinely b elieve s the agreement is based on incorrect calculations
78 MB v RB [2024] ZASCA 116 [10] . See also Gollach & Gomperts (1967) v Universal Mills &
Produce Co 1978 (1) SA 914 (A) 922-923.
79 Gollach & Gomperts (1967) v Universal Mills & Produce Co 1978 (1) SA 914 (A) at 922C -923B ;
Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T) at 284-286; Kambaku Game
Lodge BK v Joubert and another 1999 JDR 0193 (T) at 36. See also Bradfield, Christie’s Law of
Contract at 558 -559.
80 MB v RB [2024] ZASCA 116 [11] . See also Hlobo v Multilateral Motor Vehicle Accidents Fund
2001 (2) SA 59 (SCA) at [12].
81 MB v RB [2024] ZASCA 116 [12], relying on Sonap Petroleum (SA) (Pty) Ltd (formerly known
as Sonarep (SA) (Pty) Ltd) v Pappadogianis 1992 (3) SA 234 (A) at 238H.
82 MB v RB [2024] ZASCA 116 [12], relying on Sonap Petroleum (SA)v Pappadogianis 1992 (3)
SA 234 (A) at 238H.
83 Ibid.
and wrong legal advice on his part.84 A mistake which is the result of a party’s
own fault is not iustus and the party which is mistaken cannot be allowed to
escape liability derived from the agreement.85 For such a mistake may
constitute a unilateral error incapable of serving as a ground for variation of
the settlement agreement on the basis of a common mistake.86
C6 Was ‘the July Agreement’ and/or ‘the August Pretrial Agreement’ a
‘compromise’ of Tshwane ’s claim and c an Tshwane avoid or resile from
same ?
Compromise or not?
[63] Blair Atholl opposes the amendment – in the main – on the ground that it
would unravel the ‘compromise’ (as borne by the July Agreement and /or the August
Pretrial Agreement) , reached b etween the parties and, subsequently, incorporated
into the pleadings , on Tshwane’s claim for water supplied to Blair Atholl estate during
the First Period. The agreement (s) made it no longer necessary to prove at the trial
the total water consumption through all the meters at the Blair Atholl estate during
the First Period .
[64] Tshwane disputes that the circumstances under which the July Agreement
and/or the August Pretrial Agreement constituted a settlement of a disputed quantity
after a negotiated b argaining process or that Blair Atholl – through the instrumentality
of Mr Maas – struck ‘ a bargain ’ by way of some discount in the quant ity of water
consum ed by Blair Atholl .
[65] A ‘compromise’ is d efined as ‘an adjustment of claims and disputes by mutual
concession either without resort to legal proceedings or on the condition of
abandoning such proceedings if already commenced ’.87 This accords with the
84 MB v RB [2024] ZASCA 116 [13].
85 MB v RB [2024] ZASCA 116 [13].
86 Ibid.
87 Vena v Port Elizabeth Divisional Council 1933 EDL 75 at 87 (also cited in RC Claassen and M
Claassen, Dictionary of Legal Words and Phrases (LexisNexis, 2024) ‘ Claassen’s Dictionary of
Legal Words ’)). See also Slabbert v MEC for Health and Social Development of Gauteng
Provincial Government [2016] ZASCA 157 [7].
definition in Christie’s Law of Contract in South Africa88 that a compromise
or transactio is a ‘settlement by agreement of disputed obligations, whether
contractual or otherwise ’.89 But it ought to be borne in mind that whether an
obligation or dispute has been compromised is denoted by t he substance as
opposed to the form.90
[66] I understand what appears above to be accommodative of both parties ’
assertions. The above authorities clearly define ‘compromise’ as ‘an adjustment of
claims and disputes by mutual concession ’ for purposes of avoiding anticipated
resort to legal proceedings or where such proceedings are already under way on
condition of abandoning such proceedings .91
[67] In this matter the parties agreed ‘the total consumption through all the meters
at Blair Athol since inception up to 6 July 2021 ’; the ‘[t] otal consumption through
mete rs for account ending in 3576 ’; the ‘[t] otal consumption through mete rs for
account ending in 4851 ’ and the ‘[t]otal consumption through both meters’ .92 These
aspects formed par t of the overall disputes (i.e. claims and counterclaims) between
the parties. By reach ing the aforesaid agreement the parties ‘settled’ or ‘adjusted’
their claims and disputes over the agreed aspects in order to carve same out of their
future battles or l itigation.
[68] Clearly, the parties wanted to prevent or end the lawsuit or litigation on the
total water consumed or supplied during the First Period by agreeing on the figures
for that period .93 As to what they hoped to gain or feared to lose,94 is unclear. But it
may be the resources (as in time, effort and money) linked to adducing evidence to
88 GB Bradfield, Christie’s Law of Contract in South Africa (8th edn, LexisNexis, 2022 )
89 Bradfield, Christie’s Law of Contract at 551 also referring to this definition in Lawrie v Nursing
Response CC and others [2016] 3 All SA 186 [8]. See also footnote 73 above .
90 Bradfield, Christie’s Law of Contract at 551-552, relying on National Employers’ General
Insurance Co Ltd v Springbok Timber and Hardware Co (Pty) Ltd 1969 (3) SA 444 (W) 446-
447.
91 Vena v Port Elizabeth Divisional Council 1933 EDL 75 at 87; Slabbert v MEC for Health and
Social Development of Gauteng Provincial Government [2016] ZASCA 157 [7]. See also
Claassen’s Dictionary of Legal Words ’.
92 Pars [19] -[20] above.
93 Estate Erasmus v Church 1927 TPD 20 at 24 . See also Gollach & Gomperts (1967) v Universal
Mills & Produce Co 1978 (1) SA 914 (A) at 921C -D and also at 923C -D.
94 Estate Erasmus v Church 1927 TPD 20 at 24 . See also Gollach & Gomperts (1967) v Universal
Mills & Produce Co 1978 (1) SA 914 (A) at 921 C-D and also at 923C -D.
establish (for Tshwane) or to disprove (for Blair Atholl) ‘ the total consumption through
all the meters at Blair Athol since inception up to 6 July 2021 ’. A good indicator of
this point is the agreement reached in respect of account ending in 4851 . The figures
for this account are still holding firm , despite the absence of concession of the form
urged upon in respect of the 3576 account . In other words, any compromise reached
in respect of the account ending in 4851 does not appear to involve a discount. I do
not understand Blair Atholl’s case to be that a different process led to the agreement
reached over the water meters for account ending in 4851 than tho se for the 3576
account . Therefore, the material relied upon to assert a compromise reached
between the parties is the same for both accounts , both in form and substance .
Can Tshwane resile from or avoid the compromise or agreements?
[69] A ‘compromise ’ between Tshwane and Blair Atholl would constitute a contract
and, therefore, capable of being set aside on the grounds , among others, of fraud
and iustus error .95 Some of the principles relating to iustus error appear above.96
Tshwane says there was a ‘mutual iustus error between the parties ’.97 Blair Atholl
urges this Court that the latter ground or defence is unavailable to Tshwane.
[70] Generally , the creation of contracts in terms of our law is objective.98 But o ur
law allows a party to rely on its own mistake in certain instances to escape
contract ual obligations.99 The mistake ( error ), at least , would have to be reasonable
(iustus ) and be pleaded.100
[71] The concept ‘mistake’ - in the context of c ontracts - may refer to a number of
different factual situations.101 But, general ly, iustus error or operative mistake refer s
95 Bradfield, Christie’s Law of Contract at 558 -559.
96 Par [ 62] above.
97 Pars [38]-[39] above.
98 Bradfield, Christie’s Law of Contract at 385 and the cases therein .
99 National and Overseas Distributors Corporation (Pty) Ltd v Potato Board [1958] 3 All SA
13, 1958 (2) SA 473 (A) at 479G; Slip Knot Investments 777 (Pty ) Ltd v Du
Toit 2011 (4) SA 72 (SCA) [9] . See also Bradfield, Christie’s Law of Contract at 385.
100 National and Overseas Distributors Corporation v Potato Board 1958 (2) SA 473 (A) at
479; Gollach & Gomperts (1967) v Universal Mills & Produce Co 1978 (1) SA 914 (A) 926H -
927A; Slip Knot Investments 777 v Du Toit 2011 (4) SA 72 (SCA) [9] -[10]. See also Bradfield,
Christie’s Law of Contract at 385.
101 Bradfield, Christie’s Law of Contract at 383.
to a factual situation concerning a mistake recognisable from a legal point of view.102
Case law suggests a very limited possibility of iustus error .103
[72] The principles regarding iustus error include that: (a) T he mistaken party
ought to discharge the onus of proving that the mistake was – from a legal point of
view - reasonable. A mistake ought to be shown to be iustus , lest it is ignored.104 (b)
The mistake must relate to facts having a bearing on the validity of a transaction as
opposed to those pointing to ignorance of a point intended to be compromise d.105 (c)
The scope for a defence of unilateral mistake is very narrow, if it exists at all .106 This
refers to where the other party has not made any misrepresentation and has not
appreciated at the time of acceptance that its offer was being accepted under a
misapprehension .107 (d) T he other party ought to have caused the mistake or knew
of the mistake or ought to have known of the mistake .108 (e) T he material ity of the
mistake would not avail the mistaken party of an escape route from a contract where
the mistake resulted from such party’s own fault.109
[73] But it is not only fraud and iustus error which serve as grounds for setting
aside a compromise.110
[74] In this matter t he parties differ on the labels they give to whatever error that
may have occurred with regard to the July Agreement. Whilst Tshwane calls the
102 Bradfield, Christie’s Law of Contract at 383.
103 Bradfield, Christie’s Law of Contract at 385. See also P Fvrier -Breed , ‘A perspective on
the justus -requirement in justus -error ’ (1995 ) 2 Tydskrif vir die Suid -Afrikaanse Reg
(‘TSAR’) 300.
104 Bradfield, Christie’s Law of Contract at 386 and the authorities cited there . See also Blou Bul
Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T) at 286G.
105 Bradfield, Christie’s Law of Contract at 558-559, relying on Gollach and Gomperts (1967) (Pty)
Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A) 922 –3.
106 Gollach & Gomperts (1967) v Universal Mills & Produce Co 1978 (1) SA 914 (A) 926H -927A .
107 Bradfield, Christie’s Law of Contract at 385, partly relying on National and Overseas
Distributors Corporation (Pty) Ltd v Potato Board [1958] 3 All SA 13, 1958 (2) SA 473 (A).
108 Hlobo v Multilateral Motor Vehicle Accidents Fund 2001 (2) SA 59 (SCA) . See also Bradfield,
Christie’s Law of Contract at 385; Frier-Breed ‘ A perspective on the justus -requirement
in justus -error ’ 1995 TSAR 300.
109 Bradfield, Christie’s Law of Contract at 386.
110 Gollach & Gomperts (1967) v Universal Mills & Produce Co 1978 (1) SA 914 (A) at 922C -923B ;
Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T) at 284-286; Kambaku Game
Lodge BK v Joubert and another 1999 JDR 0193 (T) at 36. See also Bradfield, Christie’s Law of
Contract at 558 -559.
mistake a ‘mutual justus error betw een the parties ’,111 Blair Atholl vehemently denies
that there was any mutual error or iustus error. Tshwane bears the onus of proving
that the nature of mistake and its elements . But, ultimately, the substance of the
agreement and not the form or tag given to it by the parties would determine what
was agreed upon between the par ties in respect of their obligation(s) or the
dispute(s).112
[75] From the facts available to me it appears common cause between the parties
that they were involved in a ‘process through which an agreement could be reached
regarding the quantity of water provided by Tshwane and consumed by the HOA ’.113
There was litigation under way and both parties ha d legal representatives formally
appointed in the matter. But the actual discussion on the issue was left to Ms VRVO,
coming from billing and invoicing department of Tshwane and Mr Maas, from Blair
Atholl or the two took the lead in this regard . Ms VRVO prepared some figures or
reconciliations relating to the water supplied to and/or consumed by Blair Atholl
estate and sent same to Mr Maas , ‘as requested’.114 Mr Maas’ respon se, among
others, referred to ‘ the total consumption ’ through all the meters at Blair Athol .115 Mr
Maas concluded this part of his email with the question : ‘[a]re these the figures you
wish us to confirm? ’.116 It is not inconsequential that Mr Maas, used the phrase or
words ‘total consumption’ four times in his email. Also, he referred to ‘through
meters’ or a phrase to that effect also four times in the email.117 The phrases were
used again in Mr Maas’ email confirming the figures.118
[76] It appears to me, from what is currently available, that Mr Maas was focussed
on getting the ‘total’ or entire consumption of the water that went ‘through’ the
meters at Blair Atholl supplied by Tshwane for the First period. Ultimately , the figures
were confirmed as supplied by Ms VRVO . I agree with Tshwane that Mr Ma as was
111 Pars [38]-[39] above.
112 National Employers’ General Insurance v Springbok Timber and
Hardware 1969 (3) SA 444 (W) 446-447. See also Bradfield, Christie’s Law of Contract at 551 -
552.
113 FA, par 19.1, CaseLines 0 29-30.
114 FA, annexure ‘ARA4’, CaseLines 029 -129.
115 FA, annexure ‘ARA4’, CaseLines 029 -128. See also par [19] above.
116 Ibid.
117 FA, annexure ‘ARA4’, CaseLines 029 -128. See also par [19] above.
118 FA, annexure ‘ARA4’, CaseLines 029 -127. See also par [20] above.
not striking a ‘bargain’ when confirming the figures. Also, Tshwane argues that Ms
VRVO entirely premised her figures or reconciliation on the kilolitres of water
contemplated by the invoices and statements of Tshwane, and did not have a
separate or second ‘set of books or an alternative accounting system ’ to advance
any other position . Tshwane now says only the figures for account ending in 4851
were correct and those for the 3576 account were incorrect. I have nothing before
me suggesting that Mr Maas (and therefore Blair Atholl) knew that the figure for the
3576 account was 3 082 379 kl and not 2 082 379 kl as stated by Ms VRVO (and
therefore Tshwane) for the First Period . This appears to me to suggest t hat no true
or binding consensus was reached at all on the day in question in respect of the
3576 account .119 The error was mutual. The parties had intended to agree on total
consumption of water which passed through all meters supplying water into Blair
Atholl for the First Period, only to agree on an erroneous figure for the one account .
[77] Further , I deal with the issue whether the mutual error found to exists, above,
was iustus . Ms VRVO (and Tshwane) say(s) that the error was picked up following
her testimony and due to the involvement of the expert Mr Zeelie, whose report was
delivered in August 2024 . The explanation given is regarding the so -called ‘ clock
overs ’ on meter number 1[...] relating to the 3576 account, as stated above.120 I find
this explanation, if established, would prove the material error to have been
reasonable or iustus .
[78] Tshwane also refers to contentions by Mr Hatzkilson , on behalf of Blair Atholl ,
particularly that there was a discrepancy in respect of the consumption as reflected
in the invoice and ‘the July Agreement’ . He even mentioned that the total
consumption was 2 935 085 kl in respect of the 3576 account and, thus, alluding to
the difference of 852 706 kl from the agreed figure. All these suggest to me that on
the unamended pleadings , the parties had been ventilating the issues improperly
based on wrong figures . This is so, despite Tshwane being adamant that the error in
the figures has no bearing on the actual meter readings on meter 1[...] or the
correctness of its invoices , and did not result in an undermeasurement of water
119 Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T) 286G; Van Reenen Steel v Smith
2002 (4) SA 264 (SCA) [7].
120 Par [39] above.
supplied by Tshwane to Blair Atholl . I agree with Blair Atholl that Tshwane bear s the
onus of proof in respect of its invoices , including in respect of the correct volume of
water actual ly consum ed by a consumer and the charges therefor, as based on the
applicable tariffs. The amendment sought does not seek to interfere with this
predisposition.
[79] My finding in the preceding paragraph s equally applies to a ny agreement
subsequent to the July Agreement . It appears that anything after the July Agreement
was simply a confirmation of the terms initially agreed between Mr Maas and Ms
VRVO during July 2021. The ‘August Pre -trial Agreement’ and statements made in
Court by the witnesses and/or legal representatives appear to owe their existence to
the July Agreement and to have no basis to exist independent of or without same.
[80] It is also contended on behalf of Blair Atholl that the matter is beyond the
jurisdiction of the Court as ‘ a full and complete compromise ’ was reached between
the parties on the material . This appears to be on the strength of the SCA decision in
Ubisi and another v Road Accident Fund121 which dealt with a settlement agreement
reached in a personal injury matter between the parties where n either of the parties
challenged the validity of the settlement agreement and, thus, t he settled issues
were res judicata .122 Obviously, in the current matter before this Court , Tshwane
approac hed the Court attacking the settlement agreement. Any claim of res judicata
can only be disposed of in terms of a ruling of this Court. Therefore, the jurisdiction
of this Court is not ousted. The same applies to Blair Atholl’s argument based on the
principle of pacta sunt servanda (agreements must be honoured) .123
[81] The question whether Tshwane may resile from or avoid the impugned
agreement(s) is also dependent on the ultimate test whether any prejudice would
accrue to the other party , being Blair Atholl .124 I do not think that any prejudice
suffered or still to be su ffered by Blair Atholl would be unaffected (i.e. either
eliminated wholly or at least materially or substantially so ) by an award of costs or
121 Ubisi and another v Road Accident Fund (711/2023) [2024] ZASCA 93 (11 June 2024) .
122 Ubisi v Road Accident Fund [2024] ZASCA 93 [11].
123 Ubisi v Road Accident Fund [2024] ZASCA 93 [12]-[13]; Mafisa v Road Accident Fund 2024 (4)
SA 426 (CC) [36], [48].
124 Pars [59] -[60] above.
the postponement of the trial.125 The latter has already been ordered in November
2024. Consequently, on the basis of what appears above, I am of the view that
Tshwane – when its pleadings are amended accordingly - may be able establish a
basis to resile from or escape the material obliga tions in terms of the impugned
agreement(s).
C7 Is the proposed amendment a withdrawal of factual admissions by
Tshwane ?
[82] Another ground of objection by Blair Atholl is that the proposed amendment if
effected would constitute a withdraw al of factual admission(s) made by Tshwane
regarding the quantity of water consum ed by Blair Atholl estate for the First Period in
respect of the 3576 account . Tshwane simply dismisses this as an un sound basis for
an objection and, further, that it is a matter for the pleadings and determination by
the trial court.
[83] Our law, as stated above, allows for a dmissions made in pleadings to be
withdrawn similarly to any other form of amendment.126 An admission constitutes an
unequivocal agreement in terms of which party A agrees with a statement of fact
made by party B .127 An admission , effectively, render s it not necessary for a claimant
or plaintiff to prove the fact which is admitted.128 But amendment may be sanctioned
by the court even when this would lead to the withdrawal of an admission in a
pleading and such finding by the court is not to be preceded by a finding that there
was an error involving the admission .129
125 Par [48] above.
126 Pars [57] -[59] above.
127 Botha v Van Niekerk 1947 (1) SA 699 (T) at 703; Thompson Kusela CC t/a Thompson Security
Group v Dewald Buys t/a Masima Block Watch (2017/39176) [2023] ZAGPJHC 692 (13 June
2023) [15]. See also Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 28 -12.
128 Bellairs v Hodnett and another 1978 (1) SA 1109 (A) at 1150D ; Thompson Kusela v Dewald
Buys [2023] ZAGPJHC 692 [1 1]. See also Erasmus: Superior Court Practice RS 25, 2024, D1
Rule 28 -12.
129 Amod v South African Mutual Fire And General Insurance Co Ltd 1971 (2) SA 611 (N) at 614F -
G. See also Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 28 -12.
[84] The principles relating to the withdrawal of factual admission s made by parties
in litigation appear above .130 They confirm that the re is no complete bar to the
withdrawal of such admissions or any peculiar basket for such form of
amendment s.131 But the re ought to be a full and satisfactory explanation . I am
satisfied with the sufficiency of the explanation given by Tshwane. I also do not think
the withdrawal of any admissions is likely to cause Blair Atholl any prejudice and
injustice , at least prejudice which cannot be ameliorated by a cost order and/ or the
already granted postponement of the matter .132
C8 Did the 1 million kilolitres prescribe ?
[85] Blair Atholl , also, object s to Tshwane’s proposed amendment because
Tshwane ’s claim of 1 million kl of water - unaccounted for at the time the July
Agreement was concluded on the basis that any claim linked to this tally of water
would have prescribed . Tshwane disputes this part of th e objection on the basis that
the amendment does not seek to introduce a new claim , but r ather to reconcile the
monetary aspect of its existing c laim(s). I agree with Tshwane that prescription does
not feature in this regard. If the debt underlying the claim in the current pleading had
not become prescribed, so would be the amended claim sought to be introduced by
the amendment.133
C9 Will the amendment introduce material conflicting with the evidence
already on record ?
[86] Blair Atholl’s objection also include that the proposed amendment would
introduce material conflicting with the evidence already on record. This may be
130 Pars [ 57]-[59] above.
131 President -Versekeringsmaatskappy v Moodley 1964 (4) SA 109 (T) at 110H -111A.
132 J R Janisch v W M Spilhaus & Co (WP) 1992 (1) SA 167 (C) at 170 et seq ; President -
Versekeringsmaatskappy v Moodley 1964 (4) SA 109 (T) at 110 -111; South African Post Office
Ltd v Chairperson, Western Cape Provincial Tender Board , and others 2001 (2) SA 675 (C)
[24.2] -[24.3] . See par [96] et seq below regarding the postponement of the trial due to, among
others, the amendment application.
133 Mazibuko v Singer [1979] 1 All SA 30 (W) at 37 -38.1; Ergo Mining (Pty) Limited v Ekurhuleni
Metropolitan Muni cipality [2020] 3 All SA 445 (GJ) [8] Wholesale Housing Supplies (Pty) Ltd v
Rich Rewards Trading 556 (Pty) Ltd and Others (22189/2016) [2021] ZAWCHC 215 (29
October 2021) [7]–[17]. See also Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 28 -
15.
correct. Any evidence already adduced aligning with the July Agreement in as far as
the water consumptio n for the 3576 account would be affected by the amendment , if
allowed. But this is ordinary effect of an amendment which is allowed after evidence
is led. It cannot serve as a reason to refuse leave to amend , unless any prejudice
suffered by the opposing p arty in this regard is incapable of redress by way of a
costs order. There appears to be no such prejudice on the part of Blair Atholl .134
Therefore, this ground will not stifle the amendment.
C10 Does Tshwane have evidence to establish the intended amendment?
[87] A further point of objection by Blair Atholl is that Tshwane does not have
evidence to establish the allegations to be introduced by the proposed amendment.
But Tshwane is already on record with figu res accompanying the so -called 10 ‘clock
overs’ of 100 000 kl each which appear to tally with the 1 million kl of water allegedly
left out of the July Agreement.135 Therefore, it appears that Tshwane would have
evidence to establish the allegations it seeks to introduce in terms of the opposed
amendment.
C11 Timing of the amendment and its implications
[88] Blair Atholl , in its objection against Tshwane’s proposed amendment, also,
says that Tshwane has not demonstrated that it did not delay seeking leave to
amend. Tshwane denies that there was delay as the ‘clock overs’ were only
discovered after the 2023 hearing during 20 24 after ‘extensive investigation and
verification ’ by Ms V RVO and Mr Zeelie, the independent expert . Tshwane also
points to the fact that it appli ed for condonation.
[89] It is argued on behalf of Blair Atholl that the trial in the part -heard matter was
already at an advanced stage and ‘extensive evidence’ has already been led by both
sides. Allowing the amendment would result in the recall of witnesses and calling of
new witnesses with very serious financial implications for both parties and prejudic e
to Blair Atholl , the argument concludes.
134 The issue of timing of the amendment is discussed further in pars [ 88]-[90] below.
135 FA, pars 31 -33, CaseLines 029-52 to 029 -54. See also par [39] above.
[90] I agree that the amendment would have financial implications due to the need
to adjust the pleadings and the calling or recalling of witnesses. But Rule 2 8(10) , as
indicated above, foresees such eventualities whilst allowing the granting of leave to
amend at any stage of the proceedings, before judgment.136 The authorities are
clear on the applicable legal principles in this regard including those in the decision
in Randa v Radopile Projects about the challenges in asking for leave to amend
closer or during the trial.137 Cost orders are intended to ameliorate financial strains
occasioned by amendments and issues relating to d elay are not decisive in this
regard .138 An amendment which arose from a reasonable cause, including a bona
fide mistake may be necessary, despite its timing.139 The primary issue again
remains prejudice due to the amendment given the stage it was to be effected .140 I
have also had regard to the holdings in JMS v MMAN141 including the reiteration that
amendments would be allowed unless prejudice - incapable of being ‘cured by an
order for costs and, where appropriate, a postponement’ - would befall a party in the
position of Blair Atholl .142 I do not think so.
C12 Is the amendment sought bona fide ?
[91] Blair Atholl says the application to a mend also lacks bona fides , a necessary
requirement and, thus, constitutes an abuse of process . Tshwane denies these .
Tshwane , in an almost nostalgic cry for reciprocation, refers to postponement s of
the trial previously granted to Blair Atholl in the 14 year lifespan of th e matter . Be that
as it may, I agree with Tshwane that the amendment is sought bona fide.
C13 Prejudice and triable issue
136 Pars [44] , [53] above.
137 Randa v Radopile Projects 2012 (6) SA 128 (GSJ) [4]-[5]. See also Ciba-Geigy v Lushof Farms
2002 (2) SA 447 (SCA) at 450 A -D (i.e. headnote).
138 Par [54] above. See also Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 28 -13.
139 Zarug v Parvathie NO 1962 (3) SA 872 (D) at 876B -C.
140 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 642 C -D.
141 J.M.S v M.M.A.N [2023] ZAGPPHC 2240; 40230/2020 (21 June 2023).
142 J.M.S v M.M.A.N [2023] ZAGPPHC 2240; 40230/2020 [10]-[15] and the authorities cited there,
which form part of those appearing above .
[92] I have already dealt with the issue of prejudice under different context above.
The Court ’s inherent great latitude in granting amendments ought to be focussed on
doing justice between the parties and not to allow a mistake by a party to be always
decisive of the matter , lest the matter is determined not on the true account of what
actually transpired , but what is know n to be wrong facts.143 I belabour that p rejudice
on the part Blair Atholl will be either cured or eliminated by a costs order, to the
extent that the postponement of the matter in November 2024 did not,144 or at least
materially or substantially so.145 The remain ing issue (from the postponement in
November 2024) is the liability for costs and associated issues , to be dealt with
below .
[93] Another issue relates to the principle that an amendment should have a
reason and prima facie ‘something deserving of consideration, a triable issue’,
unless it is only aimed at harass ing one’s opponent due to lack of a foundatio n.146
Blair Atholl says that Tshwane has no triable issue to introduce in terms of the
amendment sought. But, I am of the view that the amendment would contribute to
the real or genuine issues between the parties ,147 regarding the ten ‘clock overs ’ and
implications thereof for Tshwane ’s claim .
C14 Recalling of Ms van Rede van Oudtshoorn (i.e. Ms VRVO) to testify
[94] Tshwane also seeks leave to r ecall Ms VRVO to testify on the issues
introduced by the amendment. Her evidence, it is submitted on behalf of Tshwane ,
would also deal with her fail ure to account for the 10 clock -overs .148 This would
ensure that the true nature of the dis putes between the parties predicate the
determination of the issues by the Court . Blair Atholl, among others, argues that
143 Standard Bank of South Africa Limited v Davenport NO and others (847/10) [2014] ZAECGHC
27 (25 April 2014) [6], as quoted in National Director of Public Prosecutions v Goqwana
(2938/2022) [2024] ZAECMHC 50 (18 June 2024) [59].
144 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 638A, 640E -F;. See
also Moolman v Estate Moolman and another 1927 CPD 27 at 29; Cross v Ferreira , 1950 (3)
SA 443 (C) at 447; Randa v Radopile Projects 2012 (6) SA 128 (GSJ) [7], [12]. See par [48]
above.
145 Benjamin v SOBAC 1989 (4) SA 940 (C) at 957H. See par [48] above.
146 Trans -Drakensberg Bank v Combined Engineering 1967 (3) SA 632 (D) at 641A. See Caxton v
Reeva Forman 1990 (3) SA 547 (A) at 565G -566B. See par [50] above.
147 Benjamin v SOBAC 1989 (4) SA 940 (C) at 958A -C.
148 Pars [38]-[39] above.
what led Ms VRVO ’s accounting for the ten clock over s is completely irrelevant to the
merits of the proposed amendment . I do not agree. The reasons on which the
amendment will be allowed, significantly, motivate for the necessity to recall Ms
VRVO as a witness in these proceedings. I will make an order to facilitate her
recalling as a witness.
C15 Conclusion and costs
[95] The relevant principle or rule is that the applicant for leave to amend seeks an
indulgence and , ordinarily, is liable for costs of the amendment.149 Blair Atholl asked
for punitive costs against Tshwane on a number of grounds. But I hasten to say that
the application was not vexatious or frivolous. It raised bona fide issues with a
serious and genuine bearing on the dispute between the parties.
[96] I think punitive costs are warranted for another reason: the fact that Tshwane
could have brought the application earlier on the given circumstances of this matter .
Nothing prevented Tshwane from delivering its notice to amend around the time
when Mr Zeelie ’s report was delivered in August 2024 . This would also have
accorded with the agreement reached at the May 2024 case management meeting
to dispose of interlocutory applications during Term 3 of 2024. I have also
considered in this regard the cost order I will be making in respect of the application I
turn to next.
[97] Therefore, leave to amend and to recall Ms VRVO will be granted with
Tshwane liable for the costs on a n attorney and client scale, which costs will include
costs consequent upon the employment of two counsel , wherever it was the case .
The costs should include those occasioned by the postponement of the application
on 19 November 2024, due to the unavailability of Tshwane’s counsel , as well as
costs to effect the amendment and conseque ntial amendments. I am mindful of the
tender for costs made by Tshwane with regard to this application, but considers
same to have no bearing on this application.
149 Meintjies NO v Administrasieraad van Sentraal -Transvaal 1980 (1) SA 283 (T) at 294H –295D
and Meyerson v Health Beverages (Pty) Ltd 1989 (4) SA 667 (C) at 679A –D. See also J.M.S v
M.M.A.N [2023] ZAGPPHC 2240; 40230/2020 [10] on the issue of indulgence and liability for
costs. See also Erasmus: Superior Court Pr actice RS 25, 2024, D5 -8 and D5 -10.
D : APPLICATION FOR POSTPONEMENT OF THE CIVIL TRIAL
[98] On 25 November 2024 , the trial in the action was postponed sine die . The
order made confirmed the reservation of the declar ation of liability for the wasted
costs occasioned by the postponement of the part -heard trial. It also catered for the
administrative issue of approach ing the office of the Deputy Judge President of this
Division for a case management meeting . The purpose of the latter meeting is to
facilitate the future disposal of the matter.
[99] Two issues are relevant to determining who should be held liable for the costs
of postponement : (a) the sudden withdrawal of Tshwane’s erstwhile senior counsel ,
and (b) the opposed application for leave to amend , dealt with above . These two
issues rendered the postponeme nt of the trial unavoidable. The indulgence sought -
even in this regard - was for Tshwane. Tshwane was actually alive to this aspect.
Tshwane tender ed the wa sted costs to Blair Atholl on 8 November 2024 , but to no
avail. Blair Atholl didn’t think much of Tshwane’s tender. Blair Atholl lamented that
Tshwane’s tender would hardly suffice as compensation for the prejudice occasioned
by the postponement.
[100] A tender for wasted costs by a party in the shoes of Tshwane may denote a
quest to ameliorate resultant prejudice of an opponent in the shoes of Blair Atholl . It
is sometimes the only thing and, actually , the expected thing, such party can do . Our
law does not require that a tender for costs of an opponent should always be
complete indemnification of such party ’s expenditure . This is also not the basis on
which cost orders , ordinarily , are made by the courts.
[101] Whilst, Blair Atholl was not obliged to accept the tender by Tshwane for
‘reasonable and appropriate wasted costs to mitigate’ prejudice arising from the
postponement , I find Tshwane ’s tender was somewhat reasonable under the
circumstances. The application for leave to amend was already on course. The
tender was accompanying a request for postponement of the trial. In my view, 8
November 2024 represent s a watershed point for the determination of the issue of
costs in this regard. Liability for costs before that date cannot be of the same
quantum or at the same level as that foll owing that date . Tshwane’s conduct prior to
making the tender for costs – no doubt – warrants being visited upon with the
necessary mark of disapproval. The same cannot be said post -tender. Therefore, I
will only direct that Tshwane be liable for wasted costs relating to the trial up to and
including 8 November 2024 on an attorney and client scale, but thereafter on a party
and party scale. I will also direct that counsel’s fees be at scale C for the latter part of
the order, as I find this appropr iate.
E : CONCLUSION
[102] I must say that often the applications of the type of those in this judgment
constitute ordinary applications, but the current ones before the Court are not. The
issues in both of them, particularly the leave to amend are anyt hing but ordinary. But
this was not assisted by the issues raised by the parties in their papers and counsel
in the oral argument. I am not casting any aspersions, but there was a bit of an
overload on the issues raised and the grounds for and against such issues. It is no
coincidence that the oral argument on the leave to amend lasted the whole day and
even went beyond the normal hours of the Court. The material filed was also
voluminous. These added to the delay in the handing down of this judgment.
F : ORDERS
Application for leave to amend
[103] In the p remises, in the application for leave to amend, I make the order, that:
1. the application for leave to amend brought by the a pplicant or
defendant (hereafter ‘the defendant ’) in respect of the defendant ’s
Consequential Plea and Claim 1 of the Counterclaim amended in Court
on 21 November 2023 (CaseLines 001 -1 to 001 -33), to the amended
Declaration, dated 30 May 2022, as fully described in paragraph 1 of
the notice of motion to t his application dated 30 October 2024 , is
granted;
2. the defendant is granted leave to recall Ms Benita van Rede van
Oudtshoorn to give evidence regarding the issues related to the correct
actual total water usage consumed by the respondent or f irst plaintiff
(hereafter ‘the first plaintiff’ ) and provided by the defendant in respect
of account number 5[...]2 for the period from inception to 6 July 2021 ;
3. the defendant is liable for costs of the application, envisaged in 1 and 2
hereof, on an attorney and client scale, including costs consequent
upon the employment of two counsel, wherever employed, and
4. the costs referred to in 3 hereof shall include costs occasioned by the
postponement of the application on 19 November 2024 , and costs to
effect the amendment and consequential amendments.
Application for postponement
[104] In the p remises, in the application for postponement of the civil trial, as read
with the order of the Court made on 25 November 2024, I make the order, that:
1. the a pplicant or defendant (hereafter ‘the defendant’) is liable for the
wasted costs of the respondent or f irst plaintiff (hereafter ‘the first
plaintiff’) occasioned as a consequence of the postponement of the
hearing of the part -heard trial, which was set down for ten court days
during the period 25 November 2024 to 6 December 2024;
2. the costs in 1 hereof shall be:
2.1 at the scale of an attorney and client up to and including 8
November 2024 , which costs shall include (where applicable)
costs consequent upon the employment and/or reservation of
two counsel, as well as the reasonable costs consequent upon
the reservation of Mr T Hatzkilson for trial , and
2.2 at the party and party scale from and including 9 November
2024 onwards , including (where applicab le) costs consequent
upon the employment and/or reservation of two counsel at scale
C, as well as the reasonable costs consequent upon the
reservation of Mr T Hatzkilson for trial .
___________________________
Khashane La M. Manamela
Acting Judge of the High Court
Date of Hearing : 21 November 2024
(Application for Leave to Amend)
Date of Hearing : 25 November 2024
(Application for Postponement)
Date of Judgment : 27 March 2025
(both applications)
Appearances (both applications) :
For the First Plaintiff (i.e. Blair Atholl) : Mr P Lourens (with Mr CF van der
Merwe SC for heads of argument)
Instructed by : Werksmans Attorneys , Johannesburg
c/o Brazington & McConnell , Pretoria
For the Defendant (i.e. Tshwane) : Ms T Mkhwanazi (with Ms P Mathibela )
Instructed by : Diale Mogashoa Inc, Pretoria