REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case No: 2023/035089
In the matter between:
THE INDUSTRIAL CORPORATION Plaintiff
OF SOUTH AFRICA
and
MARA CORPORATION LIMITED First Defendant
MARA PHONE LIMITED Second Defendant
MARA PS LIMITED Third Defendant
ASHISH JAGDISH THAKKAR Fourth Defendant
AHUTI CHUG Fifth Defendant
JAGDISH CHANDRA DULLABHJI Sixth Defendant
THAKKAR
SARLA JAGDISH THAKKAR Seventh Defendant
JUDGMENT
SIWENDU
DELETE WHICHEVER IS NOT APPLICABLE
REPORTABLE: YES
OF INTEREST TO OTHER JUDGES: YES
REVISED : YES
3.04.2025
DATE SIGNATURE
2
Introduction
[1] This is an application seeking to amend a plea delivered by the defendant s
in a n action (the main action) instituted by the plaintiff, Independent
Development Corporation (the IDC) , against the defendants.
[2] The first three defendant s are Mara Corporation Limited , Mara Phones
Limited, Mara PS Limited . They are companies registered in Mauritius . The
remain ing four defendants are Ashish Jag Dish Thakkar, Ahuti Chug, Jagdish
Dullabhji Thakkar and Sarla Jagdishi Thakkar . Their chose n domicilium citandi
et executandi is Mara Phones South Africa (Pty) Limited (Mara Phones S A),
Lynnwood Bridge, 4 Daventry Street, Lynnwood Manor, Pretoria. I refer to them
as the defendants consistent with the reference to them in the main action.
[3] The background to the application is that in December 2018, the IDC
entered into a loan agreement (the loan) with Mara Phones S A, (the borrower)
and advanced an amount of R 205 973 000.00 (Two Hundred and Five Million,
Nine Hundred and Seventy -Three Thousand Rand s) for the construction of a
smart phone manufacturing facility at the Dube Tra de Port in KwaZulu Natal,
South Africa. It is common cause that Mara Phones SA defaulted and breached
its payment obligations on the loan.
[4] The IDC alleges that at the time, the total amount owed by Mara Phones
SA was R 231 424 272.57 (Two Hundred and Thirty -One Million, Four Hundred
and Twenty -Four Thousand, Two Hundred and Seventy -Two Rand s and Fifty -
Seven cents). Consequently, the IDC obtained a judgment against Mara Phones
SA on 7 June 2021 before the Local Division of the High Court, KwaZulu - Natal.
After the judgment, Mara Phones SA was placed in voluntary business rescue .
[5] Although the defendants deny knowledge of payment , the IDC confirmed
that it received, an amount of R 1,983,491.12 (One Million, Nine Hundred and
Eighty -Three Thousand, Four Hundred and Ninety -One Rands and Twelve cents)
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from the business rescue practitioner as a partial settlement of its claim against
Mara Phones SA . It alleged that it s rights to its security w ere not affected by the
conclusion of the business rescue plan. That dispute would be for the trial court
to resolve to the extent persisted with.
[6] In addition to the loan, o n 22 July 2019 , the IDC and the defendants
concluded a Guarantee Facility Agreement (the Guarantee) as continuing
covering security for the borrower’s loan obligations . The IDC instituted the main
action against the defendants in their capacity as Guarantors, to recover the sum
of (a) R 165 851 673.91; (b) R 40 934 688.68; and (c) R 8 096.33 based on the
Guarantee. Mara Phones SA is not a party to the main action and this application.
[7] The IDC alleges that the defendants as Guarantors undertook that each
time a guarantee claim notice is delivered to the Guarantor, the Guarantor shall
within 3 (three) business days after receipt thereof pay all sums claimed in such
guarantee claim notice. The Guarantee define d Guaranteed liabilities covered
under i t as:
" all present and future money and liabilities (whether actual or contingent or whether
owed jointly or severally o in any other capacity whatsoever), which are now or which may
hereafter become, owing by the Borrower to IDC in terms of the Finance Documents together
with all damages and all costs, charges and expenses incurred by IDC in connection with a
breach by the Borrower of its obligations under the Finance documents and which [the] IDC is
entitled to recover from the Borrower in terms of the winding -up, absence of legal personality
or incapacity of the Borrower or any statute of limitation and reference to "Guaranteed
Liability" shall be to any one or more of the "Guaranteed Liabilities" as the context requires "
[8] The defendants opposed the action . Amongst the defences raised was on e
of an oral misrepresentation made by “the Presidency ” of the Republic of South
Africa . The defendants alleged they had been induced to conclude "the
agreements", includ ing the Guarantee . Part of the term of the misrepresentation
relied on w as that:
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“the defendants would not be called upon to pay for any losses suffered by the enterprise
should such enterprise fail .”
[9] The IDC excepted to the defendants’ plea. On 19 March 2024 , Loxton AJ
(the exception court) upheld the exception and dismissed the defendant’s plea on
the merits, but granted the defendants leave to amend their plea, if they so wished .
The present application is a sequel to the judgment upholding the exception.
[10] The defendants submit they seek “ to supplement their misrepresentation -
based defence with a defence of rectification .” As will be seen, they seek to
introduce certain terms to the written Guarantee which they claim reflect the
“common intention of the parties ” allegedly omitted on grounds of a “common
error and bona fide mistake .” [Emphasis added]
[11] The IDC opposed the amendment on several grounds evident from (a) the
notice of objection and (b) the answering affidavit . It simultaneously delivered a
Notice in terms of Rule 6(5) (d) (iii) , which it attached as an annexure to the
answering affidavit. The approach was attack ed by the defendants on the grounds
it is confusing, and the points raised in notice of objection and the answering
affidavit do not correlate with all the grounds of objection. The defendants
complained that the objection does not comply with Uniform Rule 28 (3) which
requires an objector to clearly and concisely state the grounds upon which the
objection is founded .
[12] However, w hen read together the notice of objection and the answering
affidavit clearly sets out why:
i. The amendment does not set out a viable defence and introduce triable
issues and is vague . Both explain several the grounds for this complaint.
ii. It would render the pleading excipiable and the affected contract
unenforceable.
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iii. The amendment is mala fide , brought to overcome the criticism levelled at
the defendants at the exception hearing.
iv. The IDC would be prejudiced if the amendment s were allowed.
As I read it, t he point of law raised is linked with the excipiability complaint and
is dealt with in the answering affidavit . The above complaints are clearly
discernible and stand with or without the Rule 6 (5) (d) (iii) Notice . The
defendants are not prejudiced in any way.
The Amendment
[13] The defendants seek the following amendments :
By deleting paragraphs 30.1 to 30.7 of the Plea and inserting paragraphs 28A.1 to 28A.7
in place thereof.
28A. Prior to signature of the Guarantee Agreement:
28A.1 In or about September 2018 while attending a United Nations General
Assembly meeting in New York, the President of the Republic of South Africa, the
Honourable Mr Matamela Cyril Ramaphosa and other members of the office of the
Presidency (together "the Pre sidency"), met with the fourth defendant .
28A.2 At all relevant times, the fourth defendant represented the Mara Group,
including the defendants.
28A.3 The Presidency knew that the fourth defendant was the CEO of the Mara
Group, an international group of companies (including the first, second and third
defendants) whose business was the manufacturing of smart phone devices in emerging
markets, inclu ding Rwanda.
28A.4 At the meeting in New York in September 2018 and in subsequent
telephone calls with the Presidency in or about September and October 2018, the
Presidency and the fourth defendant orally agreed that the Mara Group would establish
a Mara smart phone device manufacturing facility in South Africa ("the enterprise").
28A.5 The fourth defendant was advised by the Presidency that in establishing
the enterprise the Mara Group would deal with and co-fund the enterprise with (at least)
6
the plaintiff, a state -owned enterprise, whose mandate was and is as described in
paragraph 9 of the particulars.
28A.6 In meetings in Johannesburg and in telephonic discussions in or about
October, November and December 2018 , the fourth defendant negotiated with Ms
Moseketsi Mpeta and her team on behalf of the plaintiff the terms of the establishment
of the enterprise.
28A.7 Such terms included the oral representation by both the Presidency and the
plaintiff in meetings and telephonic discussions with the fourth defendant as aforesaid
that the plaintiff and/or the South African government would provide whatever support
was required to ensure that the enterprise succeeded (including maintaining the
employment of its employees and revitalizing the Dube Trade Port in KwaZulu -Natal,
where the enterprise was to be built) and that, accordingly, the defendants would not be
calle d upon to pay for any losses suffered by the enterprise should the enterprise fail by
reason of the plaintiff's failure to provide whatever support was required to ensure that
the enterprise succeeded ("the representation").
28A.8 The defendants, represented by the fourth defendant, accepted the
representation with the consequence that it fell to be recorded in the agreements, and in
particular in the Guarantee Agreement.
28B. The Guarantee Agreement does not correctly record the agreement between the
parties in that it fails to reflect the term of the parties' agreement in consequence of the
defendants' acceptance of the representation in that it:
28B.1 failed to qualify the defined term "Guaranteed Liabilities" by including in
the sixth line, after the words "Finance Documents," the words "save in so far as such
present and future liabilities may now or may hereafter become owing in consequence
of the IDC's failure to provide whatever support is required to ensure that the Borrower
succeeds in the conduct of its business and the Project"; and
28B.2 failed to include among the defined terms "Project" as "shall bear the
meaning ascribed to that term in the Loan Agreement".
28C The incorrect recordals set out in paragraph 28A above were occasioned by a
common error of the parties and the parties signed the Guarantee Agreement in the bona
fide but mistaken belief that it recorded the true agreement between the parties.
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28D The defendants hereby demand rectification of the Guarantee Agreement to confirm
with the common intention of the parties and request the Court in any event to adjudicate
upon the basis of the Guarantee Agreement rectified as set out above.
1. By deleting the words 'aver’ that after the word 'defendants' in line two of
paragraph 30.
2. By inserting after paragraph 30.8 the following new paragraph:
30.8A In consequence of the representation the defendants were misled as to the
terms of the Guarantee Agreement. They did not reasonably expect that the
Guarantee Agreement would impose obligations to meet losses suffered by the
enterprise, should the enterprise fail by reason of the plaintiff's failure to provide
whatever support was required to ensure that the enterprise succeeded.
3. By inserting the following after the word 'concluded' in line three of paragraph
30.11:
in particular, the defendants would not have concluded the Guarantee
Agreement which defined "Guaranteed Liabilities" without qualification to
impose obligations to meet losses suffered by the enterprise should it fail by
reason of the plaintiff's failure to provide the enterprise with the necessary
financial and other support it required.
4. By inserting the following new paragraph:
30.14 The circumstances which now pertain and have given rise to the plaintiff's
claim are a consequence of the plaintiff's failure to provide the enterprise with
the necessary financial and other support it required.
5. By inserting the following after the word 'agreements' in line two of paragraph
31.1 and the following :
31.1 there was no consensus between the parties in concludi ng the agreements,
particular the Guarantee Agreement which:
31.1.1 defined "Guaranteed Liabilities " without qualification to impose
obligations to meet losses suffered by the enterprise should it fail by
reason of the plaintiff's failure to provide the enterprise with the necessary
financial and other support it required, and
8
31.1.2 failed to qualify the defined term "Guaranteed Liabilities" by
including in the sixth line, after the words "Finance Documents," the
words "save in so far as such present and future liabilities may now or may
hereafter become owing in consequence o f the IDC's failure to provide
whatever support is required to ensure that the Borrower succeeds in the
conduct of its business and the Project";
31.1.3 failed to include among the defined terms "Project" as "shall bear
the meaning ascribed to that term in the Loan Agreement".
6. By adding, a subparagraph 31.2, which would begin with the word 'there' in the
original plea in line two of paragraph 31.
7. By inserting the words 'the effect' after the words 'agreements and' in line two
of paragraph 31.2 mentioned above.
8. By inserting the following after the words 'their terms' in line two of paragraph
31.2 mentioned above:
in particular the Guarantee Agreement in the circumstances which now pertain
9. By inserting the following after the word 'agreements' in paragraph 32:
and, in particular, the Guarantee Agreement - which imposed obligations to meet
losses suffered by the enterprise should it fail by reason of the plaintiff's failure
to provide the enterprise with the necessary financial and other support it
required,
10. By deleting the word 'which' after the word 'agreements ' in paragraph 32.
11. By inserting the following before the words 'were therefore' in paragraph 32:
with the consequence that the agreements, and in particular the Guarantee
Agreement
12. By deleting the remainder of paragraph 33.1 after the word 'representation'
herein.
13. By inserting the word 'breach' after the word 'such' in paragraph 33.2.
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14. By deleting the word 'failure' before the words 'in itself' in paragraph 33.2. 17.
By inserting the following after the word 'agreements' in paragraph 33.4: in
particular the Guarantee Agreement .”
[14] The parties rightly do not hotly contest how a court should a pproach an
amendment as the principles are well established. Nevertheless, t he starting point
is the purpose of an amendment, to assist clarify a pleading which insufficiently
or imperfectly set s out the original cause of action .1 Ultimately, an amendment
must contribute to the determination of the real issues between the parties and to
their proper ventilation.
[15] The defendants lean on the benevolent approach adopted by the Court to
amendment s. That view was endorsed by the Constitutional Court in Affordable
Medicines Trust and Others v Minister of Health and Another2 (Affordable
Medicines Trust). It is uncontested that latitude extends to instances where a new
cause of action is introduced. A court m ay also grant the amendment in a form
different from what was applied for .3
[16] Nonetheless, the privilege to amend a pleading is not unqualified . It will
be disallowed if the application is mala fide or if it will cause prejudice to the
opposite party which cannot be remedied. As the Constitutional Court stated in
Affordable Medicines Trust, the discretion to grant an amendment, which must be
exercised judicially in the light of all the facts and circumstances before the court
will be limited if , “… the parties cannot be put back for the purposes of justice in
the same position as they were when the pleading which it is sought to amend
was filed.”
[17] In addition to prejudice, an amendment will not be allowed:
i. in respect of an issue that has already been decided .
1 Trans -African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 279A –E.
2 [2005] ZACC 3 ; 2005 (6) BCLR 529 (CC) ; 2006 (3) SA 247 (CC) at [9] . See also Moolman v Estate Moolman
and Another 1927 CPD 27 at 29 .
3 National Media Ltd and Others v Bogoshi [1998] 4 All SA 347 (A), 1998 (4) SA 1196 (SCA).
10
ii. if it w ill not contribute to the determination of the real issues between
the parties , and where -
iii. the amended pleading will (not may) be excipiable4 and cannot be
cured by further particulars .
[18] Distilled to its essence, t he amendment sought is in three categories ,
comprising of: (a) pre -historical context (b) the oral misrepresentation and (c) the
rectification claim. The balance of the amendments are textual corrections and
averments consequent ial to the a cceptance of the three categories referred to
above . I deal with each category f or ease of understanding their import and the
objections raised .
Pre-historical Context introduced in paragraphs 28A.1 to 28A.6
[19] These amendments introduc e background events and discussions about the
establishment of the smart phone enterprise at Dube Trade Port in KwaZulu Nata l
between the fourth defendant, the President of the Republic of South Africa and
staff members of his office in New York in September 2018 . The staff members
are identified under a blanket rubric of “the Presidency.”
[20] The second component involves introductory meetings between the fourth
defendant and Ms Moseketsi from the IDC’s . It is alleged the fourth defendant
was advised that “Mara Group would deal with and co -fund the enterprise with
(at least) the plaintiff, a state owned enterprise .”
[21] The discussions introduced precede the conclusion of the Gua rantee on
which the action is based. As already alluded to, the Gua rantee was entered into
approximately six months after the conclusion of the loan and related documents.
When questioned about this, Counsel for the defendants was unable to point to
4 See Y.B v S.B and Others [2015] ZAWCHC 109; 2016 (1) SA 47 (WCC) at [11].
11
facts eliciting whether Ms Moseketsi from the IDC drafted and or was a signatory
to the Guarantee. The third parties are not joined as parties in these proceedings.
[22] The parol evidence rule applies to the pre-contractual discussion s. As will
be seen later, it has di fferent permutations for the amendments proposed. During
the hearing, Counsel for the defendants agreed that on its proper interpretation,
the present Guarantee is an “on demand guarantee” payable within 24 hours. The
concessio n brings the Guarantee into ambit of the decision in State Bank of India
and Another v Denel Soc Limited and Others .5 The court held that , “Guarantees are
‘not unlike irrevocable letters of credit’ which establish a contractual obligation on the part of
the guarantor to pay the beneficiary on the occurrence of a specified event. ’’6
[23] As the court in Best Drive Holdings (Pty) Limited and another v Lewis7
observed , with reference to the decision in Capitec Bank Holdings Ltd and
Another v Coral Lagoon Investments 194(Pty) Ltd and Others ,8 the pre-
contractual discussions may be relied on to elucidate the text of the Guarantee if
there was a dispute about its nature or meaning .9 Since there is no such dispute,
the pre -historic averments would not constitute admissible evidence and
accordingly do not raise a triable issue . They are not about the interpretation of
the terms or about and nature of the Guarantee.10 They do not contribute to the
determination of the real issues between the parties .
Oral misrepresentation introduced in paragraphs 28A.7 and 28A.8
5 [2014] ZASCA 212; [2015] 2 All SA 152 (SCA) .
6 Id at [7].
7 2024 JDR 3941 (GJ) The court aptly notes that Capital Bank Holdings Limited and Another v Coral Lagoon
Investments 194 (Pty) Limited and Others, 2022 (1) SA 100 (SCA), at [38 ] provides a reconciliation between the
continued recognition of the parol evidence rule and the statements of the Constitutional Court in University of
Johannesburg v Auckland Park Theological Seminary and Another .
8 [2021] ZASCA 99; 2022(1) SA 100 (SCA).
9 Id at [51].
10 Principles in Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) which require the court to have regard to the context .
12
[24] The text of the oral misrepresentation bears re stating , namely that “the
Presidency and the IDC ” in discussions with the fourth defendant represented
that:
“… the plaintiff and/ or the South African government would provide whatever support
was required to ensure that the enterprise succeeded (including maintaining the employment of
its employees and revitalizing the Dube Trade Port in KwaZulu -Natal, where the enterprise
was to be built) and that, acc ordingly, the defendants would not be called upon to pay for any
losses suffered by the enterprise should the enterprise fail by reason of the plaintiff's failure to
provide whatever support was required to ensure that the enterprise succeeded ("the
repres entation").
[25] The defendants allege that the oral misrepresentation induced the m to
invest in the enterprise and conclude the Guarantee . The defendants persisted with
their stance that the oral misrepresentation “negated consensus rendering the
Guarantee void ab initio .”
[26] The first point of departure by the IDC was that as a matter of law, it is a
separate statutory entity with separate obligation s and contractual dealings , from
the people who allegedly made the representation . The defendants incorrectly
attributed the IDC “ and the presidency and/or the South African government, as
a single entity."
[27] I have no difficulty that it may well be that in certain circumstances our
law a ccepts that a representation made by a third party can induce another to enter
into a binding contract . However, und er those circumstances, the capacity of the
party who make s the representation and the ir autho rity to bind another into the
contractual relationship (for example whether as principal or agent or contractor
or employee) must be disclosed and pleaded .11 None is pleaded in the amendment .
[28] Turning to the substance and text of the oral representation – it is partly
framed as 'whatever financial and other support was required for the principal
11See Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016 (4) SA 121 (CC) at [42].
13
debtor to succeed' . It is not possible to ascertain the allegations of fact required
to distil its meaning or parameters or what the South African government
represented it would do to support the enterprise of the Mara Group and how this
induced the defendants to conclude the Guarantee on these vague terms. Such a
term is lacking in particularity and vague.
[29] Another feature is that it alters the specified event upon which payment
may be called from the Guarantors by inserting the words , “would not be called upon
to pay for any losses suffered by the enterprise should the enterprise fail by reason of the
plaintiff's failure to provide whatever support was required to ensure that the enterprise
succeeded ("the representation")” . The effect is that trigger for the call on the
Guarantee is not the default by the borrower , (which was conceded is consistent
with “on demand guarantee” ) but is now subject to a condition and/ or potential
disputes about the reasons for the failure of the borrower . Without plead ing what
was in the contemplation of the parties by what is meant by “reasons for the
failure” of the enterprise with particular ity, such a term is untenable in law and
inconsistent with the co nstruction of the Guarantee and lacks particularity
required to sustain it .
[30] Assuming for the moment that the terms pleaded were feasible , which as
can be seen above are not, t he defendants do not allege whether the
misrepresentation was made innocently, negligently or fraudulently. It does not
follow as a matter of course that misrepresentations will vitiate a contract ab
initio . This distinction is material as each form of representation has different
consequences and remedies which may not be contractual in our law.12 What is
however undisputed is that a fraudulent misrepresentation unravels a contract.13
The absence of the pleaded facts distinguishing the nature of the
12 See Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA); [2006] ZASCA 98 ; [2007] 1 All SA
309 (SCA).
13 See also SPF and Another v LBCCT/A LB and Another [2016] ZAGPPHC 378 at [14].
14
misrepresentation relied on is material . Coupled with this, the defendants do not
plead how they were misled to conclude the Guaranteed months after the loan
documents, and whether a reasonable person would have been misled by the
representation.14
[31] Absent th e above facts and distinction, the amend ment does not clarify the
pleaded case and lacks a material averment required . It cannot stand as currently
drafted . It must be sufficiently particular to enable the IDC t o reply thereto .15
[32] Lastly, the debate about whether to permit the amendments is impacted by
Clause s 14 and 22 of the Guarantee on the plea sought to be introduced. Clause s
14 states that:
“No representations, promises or warranties have been made or given to the Guarantor by the
IDC or any other person in connection with this Agreement ."
[33] Clause 22.2 records that:
“No Party shall be bound by any express or implied term, representation, warranty, promise or
the like not recorded herein .”
[34] The question whether the IDC is precluded from relying on the above
clauses of the Guarantee, to resist the amendment part of which ensued during
the exception resurfaced . The exception court did not depart from the principle
that an oral agreement varying (at least materially) the term of a contract is not
permissible especially where those terms are placed in issue.16 I agree with the
finding by the exception court.
[35] The above clauses apply and remain extant, and that difficulty has not been
cured by the proposed amendment. The de fendants have not appealed the
14 See Curtis v Dowdle [2023] ZAGPJHC 3 at [42] - [45].
15 See Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (3) [2011] ZACC 30 ; BCLR 219
(CC), 2012 (1) SA 256 (CC) at [52].
16 Neethling v Klopper en Andere 1967 (4) SA 459 (A) points out that there was no objection to relying on proof
of an oral agreement relating to the cancellation of the contract where unlike the present case its terms are not
placed in issue.
15
exception decision which still stands . The amendment is bad in law and is
excipiable.
Rectification Claim in paragraphs 28B , 28C, 28D and paragraphs 30.8A, 30.11 ,
30.14 and 31.1
[36] As illustrated by the court in Kathmer Investments (Pty) Ltd v
Woolworths ,17 rectification of a written contract generally presupposes the
existence of a term of the real agreement, antecedent to the written contract,
which has not been properly recorded . It corrects an inaccuracy. All that must be
done is, upon proper proof, to correct the mistake , reproduce in writing the real
agreement between the parties.
[37] The rectification claim involves amongst other terms, the inclusion of the
representation in pa ragraph s 28B and 28C that the defendants:
“would not be called upon to pay for any losses suffered by the enterprise should the
enterprise fail by reason of the plaintiff's failure to provide whatever support was required to
ensure that the enterprise succeeded .”
[38] The defendants conten d that without the r ectification , there was no
consensus between the parties , and the rectification of the Guarantee to the effect
that the plaintiff may not look to the defendants to recover its losses in the
circumstances , is necessary to give effect to the ir common intention .
[39] As indicated earlier in the judgment, whether the defendants are precluded
from leading evidence of a prior oral agreement or common continuing intention
in support of a claim for rectification arises , albeit from a diff erent legal position.
It will be recalled that I f ound earlier that in so far as the interpretation of the
Guarantee is concerned , evidence of the pre-historic context would be hit by the
parol evidence rule and thus be inadmissible .
17 1970 (2) SA 498 (A) p 503 B.
16
[40] In this instance, t he introduction of that context would have been to
establish the common continuing intention to support the rectification claim. As
will be see n, when the amendment and the plea are considered as a whole, it is
clear there was no common continuing intention.18 A common mistake can only
occur where both the IDC and the defendants were of one mind and share the
same mistake - they were in this regard, ad idem .19
[41] The defendants do not allege that if both parties had been aware that the
alleged representation was not included as a written term of the Gu arantee , both
parties would not have concluded the Guarantee. Conceived differently, a
question to be asked about the common error and bona fide mistake is whether
the IDC would have agreed to either replace or amend the existing Guarantee to
meet defendant s’ concerns . The answer must clearly be no. The defendants
acknowledged when they signed the Guarantee that they had read it , understood
and accepted its contents. It should have been apparent during the exception that
there was no consensus , and there would be no such consensus a bout the newly
crafte d terms introduced by the defendants. [Emphasis added]
[42] Our Court s have also confirmed that as “an instrument” that compel
payment irrespective of the status of the underlying debt , Guarantees are
construed and require strict compliance with their terms .20 The amendments and
the prayer for rectification qualifies the Guarantee in a manner which undermines
the defendants’ liability obligation and conflicts with its written terms. It limits
its enforcement and subjects the call for payment on the Guarantee to amorphous
events , a recipe for further disputes about those events. In effect, the amendments
are designed not merely to elucidate, but to negate the essential content of the
18 See Rand Reitfontein Estates v Cohn 1937 AD 317 at 327 .
19 See Tshivhase Royal Council and Another v Thsivhase and Another 1992 (4) SA 852 (A) at 863 A – 863C ;
referring to Christie Law of Contract in South Africa 2nd ed at 382 and 397 -8.
20 Compass Insurance Company Ltd v Hospitality Hotel Developments (Pty) Ltd [2011] ZASCA 149; 2012 (2) SA
537 (SCA) .
17
guarantee. All these point to prejudice and strike at the heart of the legal nature
of the Guarantee . It does not assist to clarify the issues between the parties.
[43] What stands out is that the rectification is based on a common error and
bona fide mistake . That averment is anomalous and inherently conflicts with the
allegations of an oral misrepresentation which vitiates the Guarantee and
consensus ab initio . A conflicting pleading of the nature proposed is
impermissible and would prejudice the IDC from discerning the case it must
meet . The IDC’s compliant that it is not clear from the intended amendment
whether the defendants' defence is based on a common mistake or
misrepresentation, or rectification is not unwarranted .
[44] The terms sought to be introduced are disputed and could not reasonably
have been expected in the Guarantee. It would be prejudicial to the IDC to permit
same by an amendment .
Conclusion
[45] As the court held in Ciba -Geigy (P ty) Ltd v Lushof Farms (Ply) L td en 'n
Ander21 (Ciba - Geigy ), the defend ants were required to explain the reason for the
application and show worthiness of consideration . They were required to
show prima facie that there is something deserving of consideration, a triable
issue , a dispute which, if it is proved based on the evidence foreshadowed by the
defendants , will be viable or relevant .
[46] For the reasons stated under each of the categories of the amendment s,
the threshold envisaged in Ciba - Geigy is not met . On the contrary , the application
for amendment points to the absence of one made bona fides but is designed to
diminish the effect of the Guarantee to prevent the call for payment and /or to
21 2002 (2) SA 447 (SC A) at [ 34].
18
overcome the criticism by the exception court. The IDC would be prejudiced if
the amendment s were allowed .
[47] In su m: I conclude as dealt with seriatim above that the amendments
respectively:
i. Do not raise a triable issue,
ii. Lack the necessary averments .
iii. Exhibit an inherent legal conflict , bad in law and are excipiable .
iv. They a re prejudicial to the IDC .
[48] The application for amendments proposed in paragraphs (a) 28 A1 to
28A.6; (b) 28A.7 to 28A.8 , (c) 28B to2 8C, (d) 30.8A , 30.11, 30.14 and 31.1 (the
main amendment) is refused . Since the remainder of the amendments are
consequential on the granting of the main amendments, the rest of the
amendments must follow a similar fate .
[49] There is no reason why costs should not follow the result. As is apparent
from the judgment , costs on a higher scale are justifi ed because of the defendants’
approach.
[50] Accordingly, the following order is made :
a. The defendants ’ application to amend the ir plea, is dismissed with costs ;
b. The costs above shall be on Scale C limited to the cos ts of Senior
Counsel and one Junior Counsel .
________ _____
NTY SIWENDU
JUDGE OF THE HIGH COURT
JOHANNESBURG
19
This Judgment is handed down electronically by circulation to the Plaintiff’s Legal
Representative and the Defendant s by email, publication on Case Lines. The date for the
handing down is deemed 3 April 2025
Date of Appearance: 03 Februa ry 2025
Date Judgment delivered: 03 April 2025
Appearances:
For the Plaintiff: Advocate I Pillay SC
With: Advocate Broster (Junior)
And Advocate S Mchunu (Junior)
Instructed by: Pather and Pather Attorneys
For the Defenda nts: Advocate R Patrick SC
With: Advocate C Quinn (Junior)
Instructed by: De Klerk and Van Gend Inc