SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case No: 2129/2020
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
THE POOLING AND SHARING JOINT VENTURE, A JOINT
VENTURE ESTABLISHED BETWEEN RICHTERSVELD MINING
COMPANY (PTY) LTD AND ALEXKOR LIMITED Applicant/defendant
and
ALEXANDER BAY DIAMOND COMPANY (PTY) LTD
(PREVIOUSLY KNOWN AS SCARLET SKY INVESTMENT
60 (PTY) LTD Respondent/ plaintiff
Heard on: 14 /02/202
Delivered on : 23/05/2025
Summary: Pleading s. Application for amendment of pleadings in terms of Rule
28(4) of the Uniform Rules of Court on notice and without notice of motion supported
by affidavit as contemplated in Rule 6. Application necessary where amendment is
substantial. Would the defendant’s plea, if amended, be excipiable .
ORDER
In the result the following order is made:
1. The applicant /defendant is granted leave to amend its pleadings within 14
days of this order.
2. Applicant /defendant is to pay the costs of the application as well as the costs
of opposition.
JUDGMENT: APPLICATION FOR AMENDMENT OF PLEADINGS
MAMOSEBO ADJP
[1] The applicant (defendant ) seeks leave to amend its plea dings in terms of
Rule 28( 4) of the Uniform Rules of Court. This application is opposed by the
respondent (Plaintiff) .
[2] The applicant is Pooling and Sharing Joint Venture , A Joint Venture
established between Richtersveld Mining Company (Pty) Ltd and Alexkor
Limited Transnet SOC Limited . The respondent/plaintiff is Alexander Bay
Diamond Company (Proprietary) Limited (Previously known as Scarlet Sky
Investments 60 (Proprietary) Limited ). For convenience I will refer to the
parties as plaintiff and defendant.
[3] The issues that stand for determination are : (i) whether, without a notice of
motion supported by an affidavit , there is an application before court for
adjudication and (ii) whether the defendant’s proposed amendment if
granted would result in a plea that is excipiable .
[4] At commencement of the hearing of this application, Mr Van Niekerk SC, for
the plaintiff, raised a concern that pages 108 to 740 comprising about 632
pages, were irregularly inserted in the record without any explanatory
affidavit and urged the court to ignore the said documents . Mr Mabunda, for
the defendant, explain ed that the process of discovery ha s not been finalised
and asked the Court to take judicial notice of the said documents . In all
fairness it would be sensible to only consider pages 1 to 108 of the papers
for purposes of this application.
[5] On 1 4 March 2024 the defendant served the plaintiff with a notice of its
intention to amend its plea in terms of Rule 28(1) . The said notice sets out
the proposed amendments. On 28 March 2024 plaintiff objected to the
proposed amendment in terms of Rule 28(3). Rule 28(4) reads:
‘If an objection which complies with subrule (3) is delivered within the period
referred to in subrule (2), the party wishing to amend may, within 10 days,
lodge an application for leave to amend.’
[6] It was contended on behalf of the plaintiff that no application for the
amendment served before this court since it was not brought by way of
notice of motion supported by an affidavit . The courts have already drawn
this distinction when a party is launching a fresh application as contemplated
in Rule 6 of the Uniform Rules of Court and when bringing an interlocutory
application in the midst of pending litigation. In this court’s unreported
judgment Cornelius Amos Peterson t/a Peterson Quantity Surveying and
Project Manage ment v Minister of Public Works1 the Full Court reasoned :
‘The court a quo correctly dealt with the objection by the defendant that the
plaintiff has failed to comply with Rule 6(11) of the Uniform Rules of Court in
that the application was not filed by way of notice of motion procedure
supported by an affidavit explaining the reasons for seeking this amendment.
As clarified in Yorkshire2 ‘Notice’ in this subrule does not mean notice of
motion. These proceedings were already pending before court and the
application for an amendment is incidental to such proceedings. Whereas
the court a quo found that an affidavit by the plaintiff was necessary to
explain the circumstances leading to the change in the identity of the
defendant, I am of the view that this is not so serious as to non -suit the
1 Per Mamosebo ADJP, Lever J and Nxumalo J, Case No 1423/2010 at para 15 , delivered on 15
November 2024 .
2 Yorkshire Insurance Co Ltd v Reuben 1967 (2) SA 263 (E) at 265E - H
plaintiff in the amendment application since the Minister was already an
active participant throughout the proceedings. ’
See also De Kock v Middelhoven 3 and Swartz v Van der Walt t/a
Sentraten4.
I therefore find that no substantive application for leave to amend the
pleadings was necessary . It follows that the plaintiff must fail on this score.
[7] The second aspect for consideration is the objection by the plaintiff that
granting the defendant leave to amend its pleadings would still be open to
exception on the grounds that it will not disclose a defence, alternatively, it
will be vague and embarrassing.
[8] The genesis of this case stems from plaintiff’s claim for damages
consequent upon an alleged repudiation and termination of an agreement
concluded on 06 October 2016 as well as plaintiff's equipment installed at
the defendant's premises which is denied by the defendant .
[9] In the defendant ’s notice of intention to amend dated 0 9 April 2020, which
runs from pages 46 to 73, its first special plea (paras 1 – 5) dealt with the
non-compliance with Rule 41A of the Uniform Rules of Court in that the
plaintiff had not filed a notice pertaining to referral of the dispute for
mediation. The second special plea (paras 6 – 13) emphasised the dispute
resolution procedure contemplated in Clause 29 of the agreement concluded
by the parties and the fact that plaintiff has not followed this procedure
before litigating. The procedure allowed for the dispute to be considered first
by the Chief Executive Officers of the parties and should it remain
unresolved, to be referred to an independent mediator. Paras 14 – 33 is the
defendant’s plea on the merits. Paras 34 to 40 deal with the defendant’s
counterclaim.
3 2018 (3) SA 180 (GP)
4 1998 (1) SA 53 (W)
[10] In its Notice of intention to amend the pleadings in terms of Rule 28(1) the
defendant seeks the following relief: the deletion in entirety of paras 1 – 13,
that is the first and second special pleas; paragraphs 14 to 33 of the plea on
the merits (the plea in its entirety on the merits) as well as paras 34 to 40 of
the counterclaim, (that is the deletion of the counterclaim in its entirety. The
same must be replaced as follows :
‘First Special Plea: the contract is unlawful as it is prohibited by statute .
1. It is alleged at paragraph 6 of the amended Particulars of Claim (“the
POC”) that on 06 October 2016, Alexander Bay Diamond Company
(Pty) Ltd (“ABDC” or the “Plaintiff”) and Pooling and Sharing Joint
Venture (the “PSJV” or the “Defendant”) concluded a written
agreement to market, value, sell and beneficiate diamonds (the
“agreement”). The agreement is annexed to the POC as Annexure
“POC -1”).
2. It is further alleged at paragraph 8 of the POC that at the time of the
conclusion of the Agreement, the Plaintiff was represented by Mr
Daniel Nathan, alternatively an authorised representative of the Plaintiff
and that the Defendant was represented by Mr Mervyn Carstens (“Mr
Carstens).
3. It is common cause that the Agreement was concluded pursuant to a
Request for Proposal issued by the Plaintiff on 04 March 2016 under
tender reference number: R[...] 0[...] (the “Tender”) (also see the
Agreement, clause 2.3).
4. A copy of the advertisement for the Tender is annexed hereto marked
“DP-1” (the “Advertisement”) and stipulates that a Bidder for the Tender
must meet inter alia the following minimum requirements:
4.1 permits and licenses to conduct the business of trading in and/or
processing of rough diamonds and/or polished diamonds; and
4.2 premises, safe custody and secure viewing of the products.
5. Six (6) entities including the Plaintiff submitted bids for the Tender
before the closing date.
6. The Plaintiff’s bid (the “Bid”) did not comply with the minimum
requirements of the Tender in that the Plaintiff was not in possession of
the necessary permits and/o r licences to conduct the business of
trading in and/or processing of rough diamonds and/or polished
diamonds.
7. In its Bid, the Plaintiff submitted a Diamond Dealer’s License (the
“License”) issued to an entity registered as Daniel Nathan Trading CC.
A copy of the Licen se is attached hereto marked “DP -2”.
8. Moreover, in the Bid, the Plaintiff did not include the minimum
requirement o f having a premises authorised for the conduct of the
business of trading in and/or processing of rough diamonds and/or
polished diamonds.
9. Chapter 3 of the Diamonds Act 56 of 1986 (as amended) (the
“Diamonds Act”) prohibits any person, being in the possession of
unpolished diamonds; the sale of unpolished diamonds; the purchase
of unpolished diamonds; the dealing in unpolished diamonds; the
processing of diamonds, unless he or she is a producer; a dealer; the
holder of the relevant permit referred to in section 26 or is authorised
thereto in writing by the South African Diamond and Precious Metals
Regulator (the “Regulator”).
10. Section 28A of the Diamonds Act provides that no licensee may be
assisted by a non -licensee during the viewing, purchasing, or selling of
unpolished diamonds at any place where unpolished diamonds are
offered for sale.
11. Furthermore, section 44 of the Diamonds Act provides that no person
shall utilise any premises as a diamond trading house unless he or she
holds a diamond trading house license and those premises are
registered as a dia mond trading house in terms of the Diamonds Act.
12. The Agreement enabling the Plaintiff to market, value, sell and
beneficiate diamonds on behalf of the Defendant without the relevant
permits and licenses is in contravention of the Diamonds Act and is
therefore illegal, void ab initio and consequently unenforceable.
Wherefore the Defendant prays that the Plaintiff’s claim be dismissed with
costs.
Second Special Plea: The Contract is unlawful for Failure to Comply with
State Procurement Legislation.
13. The award of the Tender to the Plaintiff was unlawful as the Plaintiff
failed to meet the minimum requirements of the Tender as stipulated in
the Advertisement and dealt with above.
14. Furthermore, the Advertisement stipulates that the 90:10 preference
system would be applied to the Tender in terms of the Preferential
Procurement Policy Framework Act 5 of 2000 (the “PPPFA”).
15. The 90:10 preference system allows for a maximum of ten (10) points
to be allocated for specific goals such as contracting with persons, or
categories of persons, historically disadvantaged by unfair
discrimination on the basis of race, gender or disability provided that
the lowest acceptable tender scores ninety (90) points for price.
16. In awarding the Tender to the Plaintiff, the Bid Evaluation Committee
(the “BEC”) did not conduct an evaluation in accordance with the 90:10
criteria, which conduct by the BEC was in contravention of the PPPFA
and therefore unlawful.
17. The subsequent agreement was concluded in breach of the applicable
procurement prescripts which are designed to ensure a transparent,
cost-effective and competitive tendering process and is therefore
unlawful and invalid.
18. As an organ of state, the Defendant is subject to the provisions of
Section 217 of the Constitution of the Republic of South Africa, 1996
(the “Constitution”) which requires that when an organ of state
contracts for goods and services, it must do so in accordance with
principles of fairness, equitability, transparency, competitiveness, and
cost-effectiveness.
19. Section 217 of the Constitution is echoed in section 51(1)(a) of the
Public Finance Management Act, 1998 (the “PFMA”), the PPPFA and
implemented through the National Treasury Regulations which provide
that contracts for goods and services for certain value thresholds have
prescribed procedures including quotations or bidding procedures.
20. Failure by the BEC to implement the 90:10 preference system as
provided for in the Advertisement is a violation of the Constitution and
should not be sanctioned by the court.
21. Section 172 of the Constitution provides that when a court is deciding a
constitutional matter within its power, a court must declare that any law
or conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency and make an order that is just and equitable.
22. The award of the Tender and the consequent Agreement must be
declared invalid.
23. Insofar as a just and equitable remedy, the Plaintiff, that is complicit in
impropriety and illegality should be precluded from profiting from such
activities.
Where fore the Defendant prays that the Plaintiff’s claim be dismissed with
costs.
Plea on the merits
Ad Paragraph 1
24. The contents of this paragraph are admitted.
Ad paragraph 2
25. The contents of this paragraph are admitted.
26. In amplification of such admission, it is further stated that the PSJV
was established in terms of section 54(2) of the PFMA, whereby the
accounting officer of Alexkor SOC Limited (“Alexkor”) must in writing
inform Treasury of Alexkor’s role in the PSJV and submit such notice to
the Minister for approval of the transaction, being participation of
Alexkor in an arrangement similar to an unincorporated joint venture.
Ad paragraph 3
27. The contents of this paragraph are admitted.
Ad paragraph 4, 4.1 to 4.4
28. The contents of these paragraphs are admitted insofar as they
correctly reflect the contents of the unanimous resolution.
29. In amplification of such admission, it is further stated that the
appoint ment of independent contractors by the executive committee of
the joint board is subject to section 217 of the Constitution and other
relevant legislation which prescribe for a fair, equitable, transparent,
competitive, and cost -effective procurement process.
Ad paragraph 5
30. The contents of this paragraph are admitted.
Ad paragraphs 6 to 8
31. The contents of these paragraphs are admitted.
32. It is, however, denied that the Agreement was lawful, valid and/or
enforceable for the reasons stated above.
Ad paragraphs 9, 9,1 to 9.6
33. The contents of these paragraphs are admitted insofar as they
correctly reflect the contents of the Agreement.
34. It is, however, denied that the Agreement was lawful, valid and/or
enforceable for the reasons stated above.
Ad paragraph 10
35. The contents of this paragraph are denied and the Plaintiff is put to
proof thereof.
Ad paragraph 11
36. The contents of this paragraph are admitted insofar as they correctly
reflect the contents of clause 4.1.
37. For the reasons stated above, the Defendant pleads further that the
Agreement was illegal and void ab initio.
Ad paragraph 12 to 15
38. The contents of these paragraphs are admitted insofar as they
correctly reflect the contents of the documents and correspondence
referred to therein.
39. For the reasons stated above, the Defendant further pleads that there
can be no repudiation of an Agreement that is illegal and void ab initio.
40. In the alternative, the Defendant pleads that it is entitled to terminate
the Agreement forthwith in terms of clause 19.2. The Plaintiff knowingly
conducted the business of trading in and/or processing of rough
diamonds and/or polished diamonds without the relevant permits
and/or licences to the prejudice of the Defendant and its reputation and
in contravention of the Defendant’s policies and procedures.
41. The remaining contents of these paragraphs are denied insofar as they
are in conflict with what is stated herein.
Ad Paragraphs 16.1 to 16.3
42. It is admitted that the Defendant cancelled the Agreement.
43. The remaining contents of these paragraphs are denied insofar as they
are in conflict with what is stated herein above .
Ad paragraphs 17 to 19
44. The contents of th ese paragraph s are denied .
45. The amounts claimed by the plaintiff (which are denied) are a result of
an Agreement prohibited by statute. An illegal contract does not create
obligations and consequently it cannot be enforced.
46. Alternatively, the Agreement is unlawful for failure to comply with
section 217 of the Constitution and must be declared invalid in terms of
s 172 of the Constitution. Insofar as the remedy, the Defendant pleads
that parties who are complicit in impropriety and illegality should be
precluded from profiting from such activities.
47. In the alternative, the Defendant pleads that no amounts are owing to
the Plaintiff as no value was received as the Plaintiff was selling the
Defendants rough diamonds at a price that is ostensibly lower than the
market price.
48. Further, alternatively, the Defendant denies the quantum claimed and
puts the Plaintiff to the proof thereof.
Ad paragraph 20 to 25
49. The contents of these paragraphs are denied.
50. Annexure “POC4” and “POC 5” reflect that “the items” were purchased
and installed at the behest of Daniel Nathan Trading (Pty) Ltd and not
the Plaintiff. The Plaintiff’s ownership of “the items” is, therefore,
denied.
51. In the alternative, section 23 of the Diamonds Act provides that the
erection and operation of machinery designed or adopted for the
polishing of diamonds is prohibited unless a person is a diamond
beneficiator or researcher; an employee acting in the course of his or
her employment with that diamond beneficiator or researcher; or is
authorised thereto in writing by the Regulator.
52. For the reasons stated above, specifically section 23, the installation of
“the items” by the Plaintiff (which is denied) is illegal and
unenforceable.
Wherefore the Defendant prays for the Plaintiff’s claim to be dismissed with
costs.
[11] In Media24 (Pty) Ltd v Nhleko5
‘In coming to its conclusion to refuse the application for amendment, the high
court paid scant regard to the purpose of pleadings, which is to define the
issues between the parties. Because the primary role of pleadings is to
ensure that the real dispute between litigants is adjudicated upon, courts are
loathe to deny parties the right to amend their pleadings, sometimes right up
until judgment is granted. An exception is made when the amendment is mala
fides or will result in an injustice which cannot be cured by a costs order.
Thus, the power of a court to refuse amendments is confined to
considerations of prejudice or injustice to the opponent. ’
5 2023 JDR 1782 (SCA) para 16
[12] Mr Mabunda, on the one hand, argued that the proposed amendment
introduces triable and sustainable defences while Mr Van Niekerk SC
objected to the granting of the amendment sought claiming that it would
render the pleadings excipiable.
[13] I agree with the approach by King AJ in R M Van De Ghinste & Co (Pty) Ltd v
Van De Ghinste6 where it is stated:
‘What emerges clearly from these various decisions is that for a Court, faced
with an objection to a proposed amendment to a pleading on the ground that
the pleading as amended would be excipiable, to confine itself to an enquiry
as to whether or not the question of excipiability is arguable - ie whether or not
the pleading may be excipiable - is an expedient which will be resorted to only
in exceptional circumstances and that ordinarily the Court will decide on the
question and if the Court's decision is that the pleading as amended would be
excipiable the Court will refuse the application for amendment.’
[14] The plaintiff’s contention pertaining to the proposed first special plea are the
following: first, that the defendant’s reliance on a contravention, of the
Diamond’s Act, 56 of 1986, (the Diamonds Act) more specifically of s 20A ,
where it has opted to exclude a phrase in the section where the Diamond
Export Exchange Centre (the DEEC) can be utilised by the plaintiff to sell
unpolished diamonds ; the plaintiff argued that s 20 is not directed at an entity
that does not have a licence but precludes certain behaviour on the part of the
licensee; the defendant made further reference to the plaintiff’s production of
a Diamond Dealer’s Licence issued in favour of Daniel Nathan Trading CC .
Plaintiff maintains that clause 20.3 of the agreement specifically refers to not
being in possession of the required licence “at the date of first tender” and the
defendant does not allege that that was the case. The plaintiff contends that it
is inexplicable how the use of this licen ce would result in an agreement that is
void ab initio. It was submitted on behalf of the plaintiff that should these
amendments be permitted pertaining to the first special plea, it would be
6 1980 (1) SA 250 (C) at 258H – 259A
excipiable for failing to sustain a defence alternatively, for being vague and
embarrassing.
[15] In as far as the second special plea is concerned, plaintiff challenges the
stance by the defendant that prescripts governing an organ of state have not
been complied with, maintaining that the defendant is cited as a Joint Venture
and not as an organ of state subject to the Public Finance Management Act,
1999 and the Preferential Procurement Policy Framework. Plaintiff denies that
the second special plea is not a defence open to the defendant. Plaintiff
further denies that defendant has established the type of control as
contemplated in Mittalsteel South Africa Ltd (Formerly Iscor Ltd) v
Hlatshwayo7 (the control test) . Resultantly, plaintiff moves for the dismissal of
the application for leave to amend with costs, including those of senior
counsel.
[16] The defendant maintains that discovery has not been completed, and
contends that there is admissible evidence, which , if placed before Court, will
influence the Court’s decision as enunciated by Plasket AJA, writing for the
majority , in Picbel Groep8 :
‘…In Dettmann v Goldfain and Another [1975 (3) SA 385 (A) at 400A – B] this
court stated that courts are, in some instances, reluctant to 'decide upon
exception questions concerning the interpretation of a contract'. Those
circumstances are, first, where the entire contract is not before the court; and
secondly, where it appears from the contract or the pleadings that 'there may
be admissible evidence which, if placed before the Court, could influence the
Court's decision as to the meaning of the contract', provided that this
possibility is 'something more than a notional or remote one'. ’
[17] Notwithstanding that defendant does not deny the conclusion of the
agreement between the parties, nevertheless its contention in support of the
7 2007 (1) SA 66 (SCA)
8 Picbel Groep Voor sorgfonds (In Liquidation) v Somerville, and Related Matters 2013 (5) SA 496
(SCA) para 39
first special plea is that the award of the tender under tender number R[...]
0[...] and the conclusion of the contract were unlawful as the re was a
contravention of the Diamonds Act. Defendant contend s further that the
plaintiff was not even a holder of the Dealer’s Licen ce and submitted a licence
of a company, Daniel Nathan Trading CC, that was not even a party to the
tender. It is inconceivable how using this company’s licence at the DEEC
would assist the plaintiff , so the argument went . In the proposal, plaintiff did
not state that it will use the DEEC but relied on the trading house of Daniel
Nathan Trading situated at a different address than the DEEC. The licences
are also not transferrable.
[18] Regarding the attack by the plaintiff that the defendant is cited as a Joint
Venture and not individually and therefore not an organ of state governed by
the procurement legislation, the defendant’s explanation is that the Joint
Venture comprises Alexkor SOC Limited (Alexkor) and the Richtersveld
Mining Company (Pty) Ltd (RMC). Alexkor is a public entity listed in Schedule
2 of the Public Finance Management Act, 1998 whereas RMC is a private
entity with limited liability. Both make up the defendant established in terms of
s 54(2) of the PFMA read with the Deed of Settlement , and the Unanimous
Resolution of the Interim Joint Board. Of significance, and relying on
Mittalsteel , is that Alexkor holds a 51% controlling interest in the defendant, it
has contributed financially up to R200 million for the joint operations of the
defendant, and the chairperson of the joint board is appointed by the Minister
of Public Enterprises. The joint Board must therefore file quarterly reports in
line with the PFMA.
[19] The plaintiff seems to challenge the defendant’s reliance on its assertion that
it is an organ of state and must comply with the procurement legislation
claiming that the control test does not apply. But the SCA in Mittalsteel9
remarked:
9 Ibid para 19 and 22
Minister of Education, Western Cape, and Others v Governing Body, Mikro
Primary School, and Another gave this Court the opportunity of pointing out
that 'any institution exercising a public power or performing a public function in
terms of any legislation is an organ of State'. That is, with respect, correct and
was as far as it was necessary for the Court to go. The control test was not
needed. The school governing body was obviously performing a public
function and thus was an organ of State. The control test is useful in a
situation when it is necessary to determine whether functions, which by their
nature might as well be private functions, are performed under the control of
the State and are thereby turned into public functions instead. This converts a
body like a trading entity, normally a private body, into a public body for the
time and to the extent that it carries out public function
I mention these approaches not because the control test is inappropriate in
the present case but to emphasise that the test may, under given
circumstances, not be the most suitable one. In an era in which privatisation
of public services and utilities has become commonplace, bodies may perform
what is traditionally a government function without being subject to control by
any of the spheres of government and may therefore, despite their
independence from control, properly be classified as public bodies. ’
[20] It is prudent to bear in mind that exceptions are not to be dealt with in an over -
technical manner . See Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising Standards Authority SA10, and as such, a court looks benevolently
instead of over -critically at a pleading . See also First National Bank of
Southern Africa Ltd v Perry N.O.11
I am therefore unable to agree with the submission that the pleading will be
excipiable.
[21] Regard being had to the contentions and submissions by counsel on either
side, and mindful of the purpose of the pleadings, which is to define the issues
10 2006 (1) SA 461 (SCA) at 465 H
11 2001 (3) SA 960 (SCA) at 972 I
between the parties, I have no reason to deny the defendant t he right to
amend its pleadings at this stage. The Court has the power to grant the
amendment provided no prejudice would be occasioned thereby. One of the
cornerstones of justice is the determination to arrive at the truth. The
amendment must be allowed.
[22] There remains the question of costs. It is trite that a party seeking an
indulgence should pay the costs of the application , such costs to include the
costs of opposition where it was reasonable and not vexatious or frivolous.
The applicant argued that the opposition by the plaintiff for the amendment
was unmeritorious and vexatious if regard is had to the unlawfulness of the
tender award to the plaintiff. It is for this reason that the plaintiff must be
ordered to pay the costs of opposition. The plaintiff urged the court to dismiss
the application for leave to amend with costs, including those of senior
counsel.
[23] Van Winsen AJ in Myers v Abramson12 remarked as follows:
‘It does not appeal to me as being fair and reasonable that the opponent to
applicant for an indulgence should be put in a position that he opposes the
granting of the indulgence at his peril in the sense that if the amendment is
granted he cannot recover his costs of opposition or may even have to pay
such costs as are occasioned by his opposition. It seems to me that the
applicant for the indulgence should pay all such costs as can reasonably be
said to be wasted because of the application, these costs to include the costs
of such opposition as is in the circumstances reasonable, and not vexatious or
frivolous. ’
I am therefore not persuaded that the opposition was unreasonable, frivolous
or vexatious to attract a cost order against the plaintiff.
[24] In the result the following order is made:
12 1951 (3) SA 438 (C) at 455
1. The applicant /defendant is granted leave to amend its pleadings within
14 days of this order.
2. Applicant /defendant is to pay the costs of the application as well as the
costs of opposition.
MC MAMOSEBO
ACTING DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
For applicant / defendant Adv. TV Mabuda
Instructed by: Messina Incorporated
c/o Engelsman Magabane Inc
For respondent /plaintiff : Adv. JG Van Niekerk SC
Instructed by: Hector North Inc
c/o Van De Wall Inc