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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 896/2020
In the matter between:
ABSA BANK LTD Applicant
and
MAXWELL HOWARD MALIHAMBE CENGIMBO Respondent
__________________________________________________________________
JUDGMENT
_________________________ _________________________________________
RUSI J
[1] The plaintiff instituted an action against the defendant for the payment of R 214
374.09 being an amount of his alleged debt in terms of a mortgage loan agreemen t. In
the same action, the plaintiff sought an order declaring the property described as ERF
8[...] Umtata Township Extension 29, King Sabata Dalindyebo Municipality, District of
Umtata, Province of the Eastern Cape (the property), and hypothecated in term s of the
mortgage loan agreement , specially executable as envisaged in Uniform Rule 46A (the
Rule 46A payer) .
[2] On 08 November 2022, and after the defendant filed his plea dated 10 December
2020 , the plaintiff delivered its notice of intention to amend its particular s of claim. The
defendant objected to the proposed amendment by his notice of objection dated 21
November 2022. It is that objection that impelled the present application by the plaintiff
for leave t o amend its particulars of claim. The application was made on 15 December
2022 , and it is opposed by the defendant.
[3] The parties shall henceforth be referred to as they are in the action proceedings.
For proper context and ease of comprehension I first set out in summary, the material
facts that the parties pleaded in their respective pleadings.
The pleadings
[4] The plaintiff alleged, in its particulars of claim , inter alia, that the defendant
breached the mortgage loan agreement and fell in arrears o f R59 709.91. As at 30
January 2020, the full amount of the defendant’s indebtedness to the plaintiff was R214
374.09. The plaintiff further alleged that the defendant was placed under debt revi ew
and he breached a debt restructuring order that was made by the Gqeberha
Magistrates ’ Court on 10 June 2015. In terms of the said debt restructuring order, he
was obliged to make monthly payments of R1 543.38 together with interest at the rate of
6% per annum in respect of his mortgage loan agreement with the plaintiff . The said
payments would be made via a payment distribution agent.
[5] The plaintiff annexed to its particulars of claim the mortgage loan agreement
together with its terms and conditions. It also annexed a payment schedule which sets
out the amounts paid by and/or on behalf of the defendant in terms of the debt
restructuring order . Significant for the present purposes is th at ex facie the payment
schedule, the plaintiff ha s charged the defendant interest on the alleged debts at 9.5%
per annum .
[6] In resisting the plaintiff’s claim, t he defendant raised four special pleas , viz:-
(a) The non -joinder of his spouse Mrs Maureen Ntomboxolo Cengimbo on the
basis that she is the co -owner of the hypothecated property and ‘has an
interest in the outcome of litigation in the matter ;’
(b) The non -joinder of the payment distribution agent to who m he made the
payment s in terms of the debt restructuring order;
(c) That the mortgage loan agreement is invalid for lack of consent by his
spouse to its conclusion ; and
(d) That the action was pre -maturely instituted since he still was under debt
review.
[7] The defendant further denied indebtedness to the plaintiff to the extent it claims
or at all. He alleged that the plaintiff charged him incorrect interest in contraventio n of
the already mentioned debt restructuring order. In denying the alleged breach of the
debt restructuring order , the defendant pleaded that he paid the monies stipulated in
terms of the said order over to the payment distribution agent who stopped debit ing his
account.
The notice to amend
[8] The proposed amendment is a substantial one spanning eight pages . In order
not to overburden this judgment, I deem it convenient to set out the essence of the
proposed amendments. Principally, t he plaintiff seeks to delete the prayer in terms of
Uniform Rule 46A for an order declaring the hypothecated specially executable .
Secondly, it proposes to add paragraphs 5.3.7 and 6 in which it avers, in essence, that:
(1) The defendant renounced the benefits and legal exceptions of ‘non
causae debiti , non numeratate pecuniae , errore calculi ’ and revision of
accounts which are referred to in clause 1 of the Mortgage Conditions,
included as part of annexture to the mortgage loan agreement, and are
incorporated into the mortgage bon by wy of clause 14.1 of Annexure B.
(2) By reason of section 7(1) of the Recognition of Customary Marriages Act
120 of 1998 which came into operation on 15 November 200, the propriety
consequences of a customary marriage entered into before the
commencement of the Act, continued to be governed b y customary law .
The effect of this is that the defendant’s wife was not the owner of the
matrimonial property, hence the defendant did not require her consent in
concluding the mortgage loan agreements or in mortgaging immovable
property owned by him.
(3) In the alternative, that it could not have reasonably known at the time that
the mortgage loan agreement was entered into that in terms of the
Judgment of the Constitutional Court in Gumede v President of South
Africa 2009(3) SA 152 (CC) , section 15(9) of the Matrimonial Property Act
would be ordered to apply retrospectively. Section 15(9) of the Matrimonial
Property Act provides:
‘When a spouse enters into a transaction with a person contrary to the
provisions of subsection (2) or (3) of this section, or an order under section
16 (2), and –
(a) that person does not know and cannot reasonably know that the
transaction is being entered into contrary to those provisions or that
order, it is deemed that the transaction concerned has been
entered into with the consent required in terms of the said
subsection (2) or (3), or while the power concerned of the spouse
has not been suspended, as the case may be .
(4) Accordingly, the defendant’ s wife is deemed to have consented to the
transaction and the mortgage loan agreement is valid and enforceable.
(5) The defendant breached his obligations towards the defendant in terms of
a debt restructuring order in terms of which he was obliged to make
monthly payments of R1543.38 with interest at the rate of 6% per annum
in respect of his mortgage loan with the plaintiff, which payments would be
made via a payment distribution agent . He and/or the payment distribution
agent failed to make such paymen ts.
(6) The defendant is indebted to the plaintiff by the full amount of the debt
arising from the loan mortgage agreement in the sum of R221 865.94 plus
interest at 6% per annum fro m 13 October 2022.
[9] The plaintiff further makes the following prayers in a way of replacing the initial
prayers :
‘2. Payment of R221 865.94 .
3. Interest on the above amount at 6% per annum from 13 October
2022 to date of payment , both dates inclusive.’
The defendant’s objection
[10] The defendant objected to the proposed amendment on several grounds .
However, the said grounds of objection are repetitive and tend to overlap. Without
derogating from their content and true context, it is convenient to summarize them as
follows:
(a) The main reason for defending the action was the plaintiff’s prayer for an
order declaring the property specially executable . The proposed deletion
of this prayer is prejudicial to him and the prejudice it will cause will not be
ameliorated by an appropriate c ost order in that he will lose the defences
he raised in his plea to the plaintiff’s claim to this relief.
(b) The proposed deletion amounts to a withdrawal of the plaintiff’s claim
without a tender of costs, and it is thus mala fide.
(c) The amendment renders the particulars of claim excipiable in that the
remaining prayer for payment of the alleged default amount of
R214 347.09 , would not fall within the jurisdiction of this Court but it will be
justiciable in the Magistrate’s Court. This would, in turn, result in a cost
award at a lower scale of the Magistrates’ Court if he succeeds in
defending the claim in this Court.
(d) Should the amendment be granted, it will expose him to further costs of
defending a separate application for an ord er declaring the property
specially executable.
(e) The amendment has been triggered by his special pleas and through it the
plaintiff is attempting to tailor its claim in keeping with his special pleas .
This evinces mala fides , and it is prejudicial to h im.
(f) The introduction of the new interest chargeable on the alleged amount of
indebtedness will result in the loss of his defence, namely, that the
previously claimed interest was in breach of the debt restructuring order of
court which stipulated int erest of 6% per annum on the plaintiff’s alleged
debt.
(g) There is a possibility that the new amount claimed based on the adjusted
interest has been incorrectly calculated, and the document in which the
adjusted amount is entailed is inadmissible, it has not been authenticated .
The said document was manufactured ‘to cover up the flaws in the
plaintiff’s claim ’. Its admission will cause potential prejudice to him .
(h) The plaintiff ought to have replicated to his plea instead of appl ying for an
amendment. The amendment is the plaintiff’s attempt to salvage its
frivolous case , and if allowed it will result in prejudice to him.
(i) The amendment is so substantial that it creates a new case which will
necessitate him to consult with his legal representatives afresh. The
appropriate course of action for the plaintiff is a withdrawal of the action.
(j) The amendment is proposed long after the pleadings have closed , and the
plaintiff has made the required discover y in terms of the Rules of Court.
The application for an amendment
[11] This application was brought out of time by a period of nine days . Condonation is
therefore sought for non-compliance with the provisions of Unifrom Rule 28. This is a
preliminary issue to which I now turn .
The condonation application
[12] The legal principles governing condonation for non -compliance with the Rules of
Court were re -affirmed by the Supreme Court of Appeal in MEC for Health Eastern
Cape v AS obo SS1, where Keightly JA (with whom Nicholls and Weiner JJA an d
Dolamo and Molitsoane AJJA concurred) wrote:
1 MEC for Health Eastern Cape v AS obo SS (842/2023) [2025] ZASCA 02 (15 January 2025), and all the
cases referred to at paragraphs 19 to 20 of the judgment.
‘[T]he high court has an inherent right to grant condonation for a failure to comply
with the rules of court where the interests of justice demand this. The discretion
to do so is extensive, but it must be ex ercised judicially. A party seeking
condonation must give a full explanation for the failure to comply with the rules
and this explanation must be reasonable. The court must weigh all relevant
factors including, depending on the facts of each case, the deg ree of non -
compliance, the explanation therefor, the importance of the case, the avoidance
of unnecessary delays in the administration of justice and the prospects of
success. These factors are interrelated and must be weighed one against the
other. For ex ample, a slight delay and a good explanation might compensate for
weak prospects of success. However, in a case of flagrant or gross non -
observance of the rules, a court may refuse condonation regardless of the
prospects of success.’
[13] The essence of the explanation proffered by the plaintiff is that due to a lapse in
communication between its legal representatives and their local correspondent
attorneys, it did not come to its attention that the propose d amendment was objected to
by the defendant. As a result of this lapse, it proceeded to perfect the amendment by
delivering the amended particulars of claim on 08 December 2022 , which in turn elicited
a notice by the defendant as envisaged in Uniform Rule 30, dated 12 December 2022,
that the filing of the perfected amendment was an irregular step. The perfected
amendment was accordingly withdrawn.
[14] A substantial portion of the defendant’s heads of argument (14 of a total of 18
pages ), dealt with his opposition to the condonation application for the late filing of the
application. However, n o positive facts were alleged in defendant’s opposing affidavit in
refuting the plaintiff’s case in the condonation application. It was contended o n behalf of
the defendant , for the first time in his heads of argument , that the explanation provided
by the plaintiff is insufficient and unreasonable, and that in any event, it is founded on
the uncorroborated hearsay evidence of the deponent to its supp orting affidavit. It was
further submitted that the plaintiff has failed to show good cause for the condonation it
seeks an d that the application for leave to amend has no prospects of success on the
basis of the defences that the defendant raised in his p lea.
[15] It bears reiterating that i n application proceedings the affidavits take the place not
only of the pleadings, but also of the essential evidence. Heads of argument cannot
replace the facts and evidence that an affidavit constitute s. It is to the affidavits that the
court will turn in order to gather the facts forming the subject of a litigant’s complaint. It
follows that great care must be taken to fully set out the case of a party on whose behalf
an affidavit is filed in support on an application .2
[16] In any event, I hold the view that the contention made on behalf of the defendant
that the plaintiff’ s supporting affidavit is founded on unsubstantiated hearsay is a
technical objection for the following reasons – the deponent of the supporting affidavit
states that as the legal officer of the plaintiff she is au fait with this matter in which th e
plaintiff is represented by attorneys who are responsible for. It is from those attorneys
that she learned of the oversight concerning the filed notice to object. I do not conceive
of the deponent of the plaintiff’s supporting affidavit hearing of this f rom correspondent
attorneys who would have received their mandate to act as such from the plaintiff’s
attorneys of record.
[17] It ought to come as no surpri se, therefore, that t he facts regarding what caused
the nine -day delay are confirmed by the plain tiff’s attorney Ms Elmari Loubser in a
confirmatory affidavit. Apart from all this, the defendant does not dispute the order of
events regarding the service of the notice to object to the amendment, the (incorrect)
filing of a perfected amendment to the pa rticulars of claim and the subsequent
withdrawal thereof after his Rule 30 notice. Schreiner JA once stated:
‘[T]echnical objections to less than perfect procedural steps should not be
permitted, in the absence of prejudice, to interfere with the expeditious and, if
possible, inexpensive decision of cases on their real merits.’3
2 Hano Trading CC v J R 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA); James Brown & Hammer
(Pty) (Previously named Gilbert Hamer & Co Ltd) Ltd v Simmon s, NO 1963 (4) (SA) 656 at 660E -G);
Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 78 .
3 Trans -African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 278F.
[18] From the explanation that the plaintiff has proffered which the defendant has not
seriously disputed, i t is manifest that the nine-day delay in bringing this application was
not caused by the plaintiff’s willful default or inaction but rather its choice of an incorrect
course of action which was actuated by the alleged oversight on its part. I make the
finding that the plaintiff has prof fered a reasonable explanation for its delay in making
this application. In any event, the period of delay is not long. The late filing of the
application is therefore condoned. With this said, I turn to deal with the merits of the
application.
The plaintiff ’s case
[19] The deponent of the plaintiff’s founding affidavit states that after the delivery of
the defendant’s plea the plaintiff caused its legal implications to be investigated by its
legal representatives , and having done so, it sought the present amendment so that the
true issues between the parties may be ventilated at trial. She goes on to state that the
defendant was able to plead to the issues raised in the particulars of claim sought to be
amended, therefore, the objection has nothing to do with prejudice but rather his
attempt to delay the final determination of issues in the matter.
[20] The plaintiff denies that the deletion of the Rule 46A prayer amounts to a mala
fide withdrawal of it s claim wit hout a tender of costs and that it will render the particulars
of claim excipiable for lack of jurisdiction on the part of this Court to entertain the action.
In this regard, the plaintiff states that the defendant’s right to oppose this relief shall not
be lost when an application is subsequently made, so shall his right to insist on costs to
compensate him for whatever expense he may have incurred in defending the action
which included the prayer sought to be deleted.
[21] The plaintiff further states t hat the defendant’s objection based on loss of its
defence is ill -founded as this is not a valid ground for the refusal of an amendment. It
further contends that the amendment it seeks will not cause any prejudice that cannot
be ameliorated with an order of costs, and the defendant has a procedural right to make
consequential amendments.
The defendant’s case
[22] In opposing the application, the def endant echoes the grounds of objection that I
have set out above. He contends that the delay in bringing this application is prejudicial
to him , as the plain tiff has not explained why it only delivered its notice to amen d two
years after the close of plead ings.
[23] The defendant states an additional ground of opposing the application, which
was not pleaded in its notice to object, namely, that the plaintiff failed to join the
payment distribution agent who was responsible for distributing payment to all his credit
providers in terms of the debt restructuring order. Since the plaintiff replied to th ese
ground s of objection in its replying affidavit, and notwithstanding the trite principle that a
party objecting to an amendment is bound by the four corners of it s notice to object, I
will deal with this additional ground at an opportune moment in this judgment. The
plaintiff also contends that by the amendment, the plaintiff seeks to impermissibly
‘amend the annexure ’ that sets out its computation of his indebtedness.
[24] In dealing with the contention that the Rule 46 A prayer is deleted so that the
applicant may present a proper application separately, the defendant contends that the
said prayer is the subject of a pending judgment of this Court. In this regard, the
defendant makes reference to an order of this Court in which it reserved the costs of the
default judgment applicant and application for an order declaring the property especially
executable. This court order has not been annexed to the defendant’ s opposing papers.
[25] The defendant further raises as the additional basis of his opposition, the non -
joinder of his spouse as the second defendant in the main action in light of the fact that
spousal consent was required before the conclusion of the mo rtgage loan. The
importance of the said joinder, so the defendant contends, lies in the fact that his
spouse, to whom he is married in community of property, has 50% undivided share in
the hypothecated property, and the amendments that are sought ‘will ren der the
particulars of claim excipiable for non -joinder. ’
[26] In reply, and apart from persisting with the contentions it made in support of the
present application, the plaintiff further contends that the defendant’s objection to the
amendment has no s ound basis in law .
The parties ’ submissions
[27] These are the principal submissions that Mr Wessels made on the merits of the
application. It is not correct that the plaintiff is mala fide in making this application in that
it took cognizance of the defendant’s plea regarding the incorrect interest that it had
charged him.
[28] The defendant’s complaint reg arding the costs implications of the application is
unfounded in that as the party seeking leave to amend is, the plaintiff, in terms of Rule
28, is required to carry the costs occasioned by the amendment. As for the prejudice
that the defendant c ontends f or, it is not the kind of prejudice that Rule 28 envisages in
that it is based on his loss of defence or an advantage emanating from the plaintiff’s
initial particulars of claim.
[29] With regards to the alleged excipiability of the plaintiff’s particula rs of claim as a
result of the proposed deletion of the Rule 46A prayer, it was submitted that the High
Court does not have the discretion to decline hearing a matter that is properly brought
before it on the basis that the Magistrate’s court also has juri sdiction to hear it.
[30] On the score of the non -joinder of the defendant’s wife and the payment
distribution agent resulting in the excipiability of the particulars of claim, Mr Wessels
submitted that the defendant will not be prejudiced by the amendment as he will still be
entitled to raise such defences at trial.
[31] On behalf of the defendant, Ms Sodo submitted that the application is intended to
delay the conclusion of the matter and thus mala fide. In the defendant’s heads of
argument on the merits of the application, it was submitted that the proposed
amendment is intended to prejudice the parties who have not been joined as
defendants in the main action.
[32] It was further su bmitted that the plaintiff was always aware that the agreement
between it and the defendant was the subject of the debt restructuring order and it is
impermissible of it to introduce the proposed amendment in the absence of the persons
that ought to have b een joined in the main action. The submission goes on to suggest
that the amendment would cause the defendant an injustice. The proposed amendment
being a material one, so the submission continued, the court’s powers in granting it are
limited.
[33] When invited to address the court on whether loss of a defence is a valid ground
for refusing the amendment, Ms Sodo indicated that she was not able to make any
further submissions on this point.
The Law
[34] Rule 28 provides a prism through which pleadings and documents may be
amended by a party desirous of doing so. The relevant portions of the rule provide as
follows:
‘(1) Any party desiring to amend a pleading or document other than a sworn
statement, fil ed in connection with any proceedings, shall notify all other parties
of his intention to amend and shall furnish particulars of the amendment.
(2) The notice referred to in subrule (1) shall state that unless written objection to
the proposed amendment is delivered within 10 days of delivery of the notice, the
amendment will be effected.
(3) An objection to a proposed amendment shall clearly and concisely state the
grounds upon which the objection is founded.
(4) 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.
. . .
(10) The court may, notwithstanding anything to the contrary in this rule, at any
stage before judgment grant leave to amend any pleading or document on such
other terms as to costs or other matters as it deems fit.’
[35] The purpose of pleadings is to set out the causes of action and defences to it ,
and delineate the issues between the litigants.4 The primary object of allowing an
amendment is to obtain a proper ventilation of the dispute between the parties; to
determine the real issues between them so that justice may be done.5
[36] In Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and
Others, the Constitutional Court said:6
‘[89] It is evident that this rule is an enab ling rule and amendments should
generally be allowed unless there is good cause for not allowing an amendment.
This was enunciated in Moolman where the court held that:
‘[T]he practical rule adopted seems to be that amendments will always be
allowed unle ss the application to amend is mala fide or unless such amendment
would cause an injustice to the other side which cannot be compensated by
costs, or in other words, unless 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.’7
[37] The court’s dictum in Commercial Union Assurance Co Ltd v Waymark NO8 is
instructive in applications such as the present. In that case, the following principles
regarding amendments were laid down:
4 All Alloys (Pty) Ltd v Du Preez 2013 JDR 1648 (GSJ), para 11; Caxton Ltd and Others v Reeva Forman
(Pty) Ltd and Another [1990 ] ZASCA 47; 1990 (3) SA 547 (A) at 565G -566A.
5 Rosenberg v Bitcom 1935 WLD 115 at 117; Trans -Drakensberg Bank Ltd (under Judicial Management)
v Combined Engineering (Pty) Ltd 1967 (3) SA 632 (D) at 638A; YB v SB 2016 (1) SA 47 (WCC) at 51C –
D.
6 Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others (CCT 212/18)
[2019] ZACC 41; 2020 (1) SA 327 (CC); 2020 (1) BCLR 1 (CC); 2019 BIP 34 (CC) (24 October 2019);
Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC), para 9.
7 Moolman v Estate Moolman 1927 CPD 27 at 29.
8 1995 (2) SA 73 (Tk) at 77F -I.
(a) The ultimate decision of whether to grant an amendment is an issue at
the discretion of a judicial officer, which discretion must be ex ercised
wisely after deliberating on all relevant legal and factual considerations;
(b) An amendment cannot be granted for the mere asking, some explanation
must be offered therefor.
(c) The applicant must show that prima facie the amendment has
something deserving of consideration, a triable issue.
(d) The modern tendency lies in favour of an amendment if such facilitates
the proper ventilation of the disputes between the parties.
(e) The party seeking the amendment must not be mala fide.
(f) The amendment must not cause an injustice to the other side which
cannot be compensated by costs.
(g) The amendment should not be refused simply to punish the applicant for
neglect.
[38] In the discussion that follows I apply these legal principles to t he facts of this
application.
Discussion
[39] The defendant makes a bald assertion throughout his answering affidavit , as he
did in his notice to object , that the amendment will prejudice him. Even though he
asserts that the amendment has the effect of introducing a new cause of action, he has
not set out how the case sought to be introduced by way of the proposed amendment is
not substantially the same cause of action on which the plaintiff’s claim was based in
the original particulars of claim , and how he will be prejudiced .
[40] In any event, i t has been held that an amendment which introduces a new cause
of action will be allowed if no prejudice is caused to the defendant.9 Suffice it to state
that I am unable to agree with the contention that the amendment has an effect of
introducing a new cause of action. The plaintiff’s claim is in the main, for the payment of
R R214 374.09 being an amount allegedly owing by the defendant in terms of the
9 MacDonald Forman & Co v Van Aswegen 1963 (2) SA 150 (O) at 153D.
mortgage loan agreement , together with interest thereon at the rate of 9.10% per
annum from 31 January 2020 to date of payment . I hold the view that as opposed to
introducing a fresh cause of action the proposed amendment augments the plai ntiff’s
particulars of claim which insufficiently or imperfectly set out its cause of action.
[41] Moreover, i n Zarug v Parvathie NO10 it was held that the court will allow an
amendment, even though it may be a drastic one, if it raises no new question that the
other party should not be prepared to meet , and ‘no matter how negligent or careless
the mistake or omission may have been and no matter how late the application for
amendment may be made ’, the application can be granted if the necessity for the
amendment has arisen through some reasonable cause, even tho ugh it be a bona fide
mistake.’11
[42] The submission that the proposed amendment lacks bona fides by reason of the
fact that it was prompted by the first defendant’s second special plea, and unduly late,
equally cannot stand. To borrow from the words of Wessels J,12 ‘the object of the court
is to do justice between the parties. It is not a game we are playing, in which, if some
mistake is made, the forfeit is claimed.’
[43] Even though the above quoted passage of the court’s dictum was in relation to
an amendment which was objected to on the ground of it amounting to a withdrawal of
an admission, it holds true for the present case. The defendant is in essence saying that
he must be allowed to hold on to an advantage that he gained as a result of the
plaintiff’s inclusion in the unamended particulars of claim of the Rule 46A prayer ; the
incorrect interest charged; and the incorrectly computed debt. He has, however, not
stated that he will be hampered in p resenting whatever defence he may wish to raise
when the application to declare the property specially executable is made at a later
stage.
10 1962 (3) SA 872 (D).
11 Ibid 876 B -C; Macduff & Co (in liqudation) v Johannesburg Consolidated Investment Co Ltd 1923 TPD
309.
12 Whittaker v Roos and Anothe r 1911 TPD 1092 at 1102.
[44] The defendant reserves his right to dispute, at the trial of the case, his
indebtedness to the plaintiff at al l or in the amount sought to be claimed, and to also
object to the non -joinder of his spouse and the payment d istribution agent. As regards
the contention that the amendment will expose the defendant to incurring costs and thus
be prejudicial to him, suff ice it to state that since the plaintiff is seeking an indulgence
from the court, it follows that it must carry the costs occasioned by the amendment.
[45] It bears restating that a n application for an amendment may be made by the
party desirous of such an amendment at any stage before judgment and has been
allowed at different stages of the proceedings.13 In this case the application was made
two years after the defendant filed his plea. The plaintiff is required to furnish an
explanation why it took it two years to put its particulars of claim in proper order at most
after the defendant filed its plea in 2020. Even so, i t is only in relation to the question of
prejudice that the applicant is required to show that his application to amend is bona
fide, and to explain any delay there might have been in this regard.14
[46] The present application was brought before the trial of the matter commenced,
and it can readily be said that it is less disruptive. The defendant has not set out how
the delay of two years in making the amendment will cause him prejudice in answering
to the proposed amendments if the amendment is allowed. Nor has he shown that the
plaintiff’ s claim would not be a viable one. As held in Benjamin v Sobac South African
Building and Construction (Pty) Limited,15 if a claim as set out by a party is not a v iable
claim, it would be doing an injustice to the respondent to grant the amendment.16
[47] On the contrary, the amendments that the plaintiff proposes are indeed matters
that arose from the defendant’s special plea s, and he was well able to plead to the
issues raised in the unamended particulars of claim. It cannot lie in the defendant’s
mouth to contend that th e amendment which came about two years after his plea will
prejudice him.
13 Hebstein and Van Winsen – The Civil Practice of the Superior Courts of South Africa (Ed) page 675,
and authorities referred to therein.
14 Trans -Drakensberg Bank Ltd (under Judicial Management) supra 640H; Barclays Bank International v
African Diamond Exporters (Pty) Ltd (1) 1976 (1) SA 93 (W) 96C) .
15 Benjamin v Sobac South African Building and Construction (Pty) Limited 1989 (4) SA 940 (C).
16 Ibid page 958 ; Trans -Drakensburg Bank Ltd (Under Judicial management) at 641.
[48] On the issue of the excipiability of the particulars of claim as a result of the
deletion of the Rule 46A prater , it bears mentioning that a reading of Rule 23 which
governs e xception s suggests that there are two grounds for raising an exception,
namely – that a pleading does not set out a cause of action of the averments made in it
are vague and embarrassing.
[49] An exception is a legal objection to an opponent’s pleading on the basis of an
inherent defect i n its formulation.17 The contention that lack of jurisdiction is a ground of
exception ca nnot be sustained. Lack of jurisdictio n is a legal objection that has nothing
to do with the formulation of the pleading and ought to be raised by way of a special
plea.
[50] Needless to say that contrary to what the defendant contends, the High Court
has jurisdiction over all persons residing or being in, and in relation to all causes arising
within its area of jurisdiction and all other matters of which it may according to law take
cognizance. This is in ter ms of section 21 of the Superior Courts Act 10 of 2013.
[51] It follows that the High Court has jurisdiction over all matters that also fall within
the jurisdiction of the Magistrate’s Court. In South African Human Rights Commission v
Standard Bank of So uth Africa Ltd and Others18, Madlanga J, writing for the Court, dealt
with the issue of the Jurisdiction of the High Court and its entitlement to decline hearing
matters that may be heard in the Magistrate’s Court and are properly brought before it ,
and said:
‘[27] The assumption of jurisdiction should not be confused with the manner in which a
court decides to exercise its jurisdiction. There is no discretionary power to decline the
assump tion of jurisdiction over a matter within the jurisdiction of a court. But how a
court decides to exercise the jurisdiction it enjoys is a separate issue. That issue
includes considerations as to whether in exceptional circumstances jurisdiction is not
17 Erasmus , Superior Court Practice, Volume 2 (Service 13, 2020) D1 -293.
18 South African Human Rights Commission v Standard Bank of South Africa Ltd and Others (CCT
291/21) [2022] ZACC 43; 2023 (3) BCLR 296 (CC); 2023 (3) SA 36 (CC) (9 December 2022) .
exercised by reason of, for example, abuse of process or the stay of proceedings
pending some other form of dispute resolution, or on grounds of comity...’
[52] The learned Judge went further a nd stated as follows:
‘[35] The law affords the High Court the power to entertain matters in respect of
which the Magistrate’s Court also has jurisdiction. All that the mandatory
jurisdiction principle says is that the High Court cannot run away from matters
that fall within its juri sdiction. If a matter over which it has jurisdiction is brought
before it, it must exercise that jurisdiction. . . ’
[36] A court either has jurisdiction or it does not and that question is answered
by reference, in this instance, to section 21 of the Supe rior Courts Act. Absent a
constitutional challenge to section 21, the division of labour mandated by the
Legislature between courts in respect of their jurisdiction must be honoured. For
these reasons, the default position advocated by the SAHRC is not p ossible...)
[53] Therefore, the defendant’s contention that the deletion of the Rule 46 A prayer will
render the plaintiff’s particulars of claim excipiable for lack of jurisdiction has no merit.
Similarly, his objection based on his loss of defence by the deletion of the Rule 46A
prayer cannot be sustained for the simple reason that loss of a defence is not a valid
ground for refusing the amendment. In South British Co Ltd v Glisson19, it was held:
‘[T]he fact that the amendment may cause the respondent to lose his case
against the applicant is not of itself “prejudice” of the sort which will dissuade the
court from granting it.’
[54] I am in respectful agreement with the sentiments of the court in Glisson . In any
event, in the present case, the defendant must still answer to the plaintiff’s remaining
claim for the money judgment. This brings me to the contention that the proposed
amend ment would amount to a mala fide withdrawal of the plaintiff’s claim without a
tender of costs.
19 1963(1) SA 289(D) at 294B -C.
[55] In the present case, t he prayer for the declaration of the property specially
executable was ancillary to the plaintiff’s claim for the payment of the de bt owed to it by
the defendant . It cannot be correct, therefore, that its deletion amounts to a withdrawal
of the claim without a tender of costs . Furthermore, it is open to the respondent, when
the plaintiff separately launches the relevant application to declare the property specially
executable , to persist with an adverse cost order against it in the light of the fact, as
correctly acknowledged by the plaintiff, that the courts encourage that the Rule 46A
application be instituted in the sa me application for the money judgment.
[56] I take cognizance of the fact that costs occasioned by an amendment will be
awarded on a party and party scale, while the defendant will have incurred costs on a
scale as between attorney and own client. That b eing said, this Court has jurisdiction to
make awards of costs on an attorney and own client scale where there are grounds for
such an order. This is a matter of the court’s discretion.
[57] It may very well be that this application was necessitated by the plaintiff’s own
blunder in the formulation of its particulars of claim . However, to allow the defendant an
unjust advantage over the plaintiff would not be in the interests of justice. It is my finding
that the defendant will be in no worse a position than it would have been if the plaintiff’s
particulars of claim in amended form were filed from the beginning.
[58] I am not satisfied that the defendant will be prejudiced by the proposed
amendment , which prejudice cannot be ameliorated by an appropriate cost order. Nor
am I persuaded that the present application is mala fide . On the contrary, the proposed
amendment will contribute to the determination by the court of the real issues between
the parties. Therefore, it ought to be allowed.
[59] In the result, I make the following order :
1. The plaintiff is granted leave to amend its particulars of claim by the deletion of
the prayer in terms of Uniform Rule 46A for an order declaring the property
specially executable ; and by adding paragraphs 5.3.7 and 6, as set out in its
notice to amend dated 08 November 2022 .
2. The plaintiff shall deliver its amended particu lars of claim within 1 0 days of this
order.
3. The plaintiff shall pay the costs occasioned by the aforesaid amendment.
4. The defendant shall pay the costs of this application.
_________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Adv. LN Wessels
Instructed by : Sandenbergh Nel Haggard
c/o Smith Tabata Attorneys, Mthatha
For the defendan t : Ms S Sodo
Mvuzo Notyesi Incorporated, Mthatha
Date heard : 28 November 2024
Date delivered : 10 June 2025