IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no.: A143/2024
In the matter between:
EBESA Architects (Pty) Ltd Appellant
and
The City of Cape Town Respondent
JUDGMENT ELECTRONICALLY DELIVERED ON 09 APRIL 2025
A. INTRODUCTION
[1] This is an appeal, with leave of the Supreme Court of Appeal (SCA), against
the judgment of my sister Mantame J of this Division , in which she dismissed the
appellant’s application for leave to amend its Plea and Conditional Special Plea, with
costs.
[2] The brief history of the litigation is that the respondent (“the City ”) had
instituted an action against the appellant (as first defendant) and five other
defendants for damages based on two tender contracts that were to be executed in
tandem. The first tender was granted to a joi nt venture made up of the first to fifth
defendant (“the Ebesa JV”), while the second tender was granted t o the sixth
defendant.
[3] After the appellant delivered a plea to the particulars of claim, the City
delivered a replication, and thereafter amended its particulars of claim, without
objection. Subsequently, the appellant delivered a notice of intention to amend, to
which the City o bjected. As a re sult, the appellant brought a formal application for
leave to amend , which was opposed by the City, and is the subject of the judgment
under appeal.
[4] Although the decision regarding whether to grant or refuse an application to
amend a pleading rests within the discretion of the court, th e discretion must be
exercised with due regard to certain basic principles. 1 The practical rule emerg ing
from the case law is that amendments will always be allowed unless an amendment
is mala fide or will cause an injustice to the other side which cannot be cured by an
appropriate order for costs, or 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.2
[5] Although the granting of an amendment is an indulgence to the party asking
for it, the modern tendency of the courts lies in favour of an amendment whenever
such an amendment facilitates the proper ventilation of the dispute between the
parties.3 The powe r of the court to allow even material amendments is therefore
limited only by considerations of prejudice or injustice to the other side.4
B. THE AMENDMENTS
[6] The appellant seeks to make a range of amendments to its Conditional
Special Plea and its Plea, numbered from 1.1 to 1.3 , and 2.1 to 2.9 in the notice of
motion, respectively. Before the hearing in the court a quo, the appellant withdrew its
1 Caxton Ltd. and Others v Reeva Forman (Pty) Ltd. and Another (393/88) [1990] ZASCA 47; 1990 (3)
SA 547 (AD); [1990] 2 All SA 300 (A) (17 May 1990) at 565G.
SA 547 (AD); [1990] 2 All SA 300 (A) (17 May 1990) at 565G.
2 Moolman v Estate Moolman & another 1927 CPD 27 at 29. Affordable Medicines Trust and Others v
Minister of Health and Another 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) para 9.
3 Media 24 (Pty) Ltd v Nhleko and Another (109/22) [2023] ZASCA 77 (29 May 2023) para 16.
4 Media 24 (Pty) Ltd v Nhleko and Another para [16].
application in respect of paragraphs 2.4, 2.8 and 2.9 of its notice of motion, whilst the
relief sought in paragraph 2.5 was not opposed and was granted by the court a quo.
It is accordingly not necessary to deal with the amendments sought in those
paragraphs.
Paragraphs 1.1 & 1.2 of notice of motion (paragraphs 2 & 3 Conditional Special
Plea)
[7] The intended amendments to the Conditional Special Plea were set out in
paragraphs 1.1 and 1.2 of the notice of motion as follows:
‘1. By deleting the phrase “failing which such a dispute would first be referred
to either mediation or adjudication, and then to arbitra tion” in paragraph 2
thereof and by replacing it with “failing which such a dispute would be
referred to mediation”.
2. By deleting the phrase “nor was the dispute ever referred to or determined
by mediation, adjudication or arbitration ” in paragraph 3 thereof and
replacing it with “nor was the dispute ever referred to mediation”.”
[8] The appellant state s that the amendments are sought to ensure that the
provisions of the the Contract Data, which is the document that regulates t he
resolution of disputes between the parties, are correctly pleaded . According to the
appellant, clause 12.1.2 thereof provides that the interim settlement of disputes is to
be by way of mediation , and is silent regarding adjudication and arbitration, which
are currently mentioned in the Conditional Special Plea.
[9] The City’s objection is that the amendments are contrary to the clear wording
of the Contract Data. Specifically, that they are incomplete and inconsistent with the
wording clause in 12.2.4 of the Contract Data, which is the applicable provision, and
which, according to the City, contains the words ‘or final settlement by litigation’ after
the word ‘mediation’. The City argues that clause 12.2.4 is the applicable provision
because it is common cause that the date of practical completion of the contract was
because it is common cause that the date of practical completion of the contract was
17 July 2019 , which means the date for resolution by mediation had passed. As a
result, the effect of the amendment would be prejudicial to it because if the matter
proceeded to mediation, its claim may have become prescribed.
[10] The court a quo agreed with the City and held that t he reference to mediation
was a dilatory tactic by the appellants, aimed at avoiding paying damages for as long
as possible. Th e court also held that th e intended amendment was an attempt to
withdraw a n admission already made by the appellants , for which there was no
explanation.
[11] The court a quo remarked that none of the appellant ’s amendments were
consequential upon the City's amendment to its particulars of claim , which it said
was a clear indication that the appellant was seeking to change the formulation of its
defences. The court also held that the City’s claim was not determinable at the time
that the contractual w orks were still ongoing fo r submission to mediation ,
adjudication or arbitration, and that its loss could only be determined upon practical
completion of the contract.
[12] It is necessary to have regard to the pleadings in detail. The original
paragraphs 2 and 3 of the Conditional Special Plea, which were sought to be
amended, read as follows:
“Take notice further that i n the alternative and in the event that the
Court should find that the agreement between the plaintiff and the [JV]
as pleaded by the plaintiff in paragraphs 9 to 14 of its particulars of
claim has not terminated , the [appellant] raises the following
Conditional Special Plea:
…
2 Clause 12 of the [Standard Professional Services Contract July
2009 (Edition 3 of CIDB document 10/14 “the C onditions”]
determines that the plaintiff and the J oint Venture (“J V”)] would
negotiate in good faith with a view to set tling any dispute, failing
which such a dispute would first be referred to either mediation
or adjudication and then to arbitration.
3 The plaintiff made no attempt to settle any dispute by way of
negotiating in good faith with the JV, nor was the dispute ever
referred to or determined by mediation, adjudication, or
arbitration”
[13] In response to the above, the City replicated as follows:
“Ad paragraph 2 thereof
The plaintiff was not in a position to assess the loss at that time due to
the actual work delays which were not anticipated , nor could they be
quantified.
Ad paragraph 3
Plaintiff admits these allegations.”
[14] Thus, far from disputing the applicability of mediation as a dispute resolution
mechanism, in addition to adjudication and arbitration , the City admitted it in its
replication. Its explanation for not being able to comply with those dispute resolution
mechanisms was that it was not i n a position to assess the loss at that time due to
work delays which were not anticipated, nor could they be quantified.
[15] Given that this was in response to the appellant’s conditional plea which was
pleaded “in the alternative and in the event that the Court should find that the
agreement between the plaintiff and the JV as pleaded by the plaintiff in paragraphs
9 to 14 of its particulars of claim has not terminated ”, the time period referred to in
the replication could only be a reference to the duration of the agreement between
the parties. In other words, the effect of the replication was to admit the applicability
of mediation during the ex istence of the agreement, and to explain that at the time,
the City was not in a position to assess or quantify its losses.
[16] In the Contract Data, the word ‘mediation’ is only used in clause 12.1.2, not in
clause 12.2.4. The relevant provisions of the Contract Data state as follows:
“Clause 12.1.2:
Interim settlement of disputes is to be by mediation.
…
Clause 12.2.4:
Final settlement is by litigation.”
[17] Contrary to what was claimed in the City’s objection, clause 12.2.4 does not
provide f or ‘final settlement by litigation ’ after the word ‘mediation’. There is no
mention of the word ‘mediation’ at clause 12.2.4. It is in clause 12.1.2 that ‘mediation’
appears as the only dispute resolution mechanism available for interim settlement of
disputes, which the City had originally admitted.
[18] Moreover, there is no mention of ‘adjudication’ or ‘arbitration’ in clause 12.1.2,
and in that regard the appellant is correct when it states that the amendment is
intended to reflect the wording of that provision. If the conditional special plea is left
unamended, it places upon the parties an additional obligation to refer a dispute
regarding an extant contract to adjudication and/or arbitration, which is not provided
for in the Contract Data.
[19] An issue that took prominence at the appeal hearing is the so -called
withdrawal of a clear and unequivocal admission of liability on the part of the
appellant regarding the fact that the date of practical completion of the contract was
17 July 2019 , and that as a result, the date for dispute resolution by mediation had
passed. In support of this argument , the City refers to paragraphs 17 to 19 of the
particulars of claim, which state as follows regarding the timeframe that is said to be
common cause:
“SECOND TENDER - [SIXTH DEFENDANT]
15. On 4 March 2016 the City published a tender which closed on 5 April
2016 in respect of the Bloemhof: Network Control Centre (“the NCC”)
and High Voltage Depot (“the HVD ”) under Tender Number
267Q/215/16 (“the second tender”).
16. The services in terms of the second tender had to be executed in
tandem with the professional services awarded in terms of the first
tender.
17. The City awarded the second tender to [the 6th defendant] on 6th March
2017 with a contract value of 97.3 million (excluding vat) which was
accepted by [the sixth defendant] on the same date.
18. The duration of the contract was for a period of 11 months
commencing on 1 June 2017 and ending on 12 June 2018.
19. The completion date was further revised to 17 July 2019 and practical
completion was achieved on 17 July 2019.”
[20] The appellant pleaded as follows to these paragraphs:
“Ad paragraphs 15 to 21 thereof
19. Other than to admit that on or about 6 March 2017, the plaintiff and the
sixth defendant concluded a construction contract (“the Construction
Contract”) in terms whereof the sixth defendant would attend to the
design and construction of the Bloemhof Network Control Centre and
High Voltage Depot of the plaintiff (“the Works”) the first defendant does
not have any personal knowledge of the allegations in these
paragraphs.”
[21] Far from admitting the date of completion of the contract, the appellant
pleaded ‘no knowledge’, which is permissible in terms of Uniform Rule 22(2).5 A plea
5 Uniform Rule 22(2) provides: “The defendant shall in [his or her] plea either admit or deny or confess
and avoid all material facts alleged in the combined summons or declaration or state which of the said
facts are not admitted and to what extent, and shall clearly and concisely state all material facts upon
which [(s)he] relies”. In Wilson v South Africa Railways and Harbors 1981 (3) SA 1016 (C) it was held
that, in terms of Uniform R ule 22(2) a defendant has a right to plead non -admission where it has no
knowledge of certain facts.
of ‘no knowledge’ does not constitute a “clear and unequivocal admission of liability”
as contended by the City, and is in fact closer to a denial.6
[22] Besides, it is abundantly clear from the contents of the plea that the appellant
denies that the services contract was extended , and instead pleads that it was
terminated on 30 June 2016 .7 This is evident from, amongst others, paragraphs 16
to 18 and 21 of the plea, where the following is pleaded:
“16. The first defendant pleads that upon the award of the First
Tender to the JV and the acceptance thereof on 23 July 2013,
the JV and the pla intiff concluded the Services Contract, which
agreement only remained operational for the period from 1 July
2013 to 30 June 2016. The Services Contract thus terminated
upon the expiry of such period.
17. Clause 3.2 of the written joint venture agreement concluded
between the first to fifth defendants, a copy of which is annexed
to the plaintiff ’s Particulars of Claim, marked “POC1” (“the JV
Agreement”) determined that the operation of the JV and the
validity of such agreement would terminate if, inter alia, all
obligations and rights of the JV and its members in connection
with the contract with the plaintiff have ceased.
18. Accordingly, the JV agreement and thus the JV itself terminated
on the termination of the Services Contract.”
[23] Again, at paragraph 21 of the plea the following is stated:
“At the time that the Construction Contract was concluded and the
Works had to be performed in terms thereof, both the Services
Contract and the JV had been terminated. As such, although the first to
6 See Van Loggerenberg, Erasmus Superior Court Practice , Second Edition, D1 -264, and cases
referred to at footnotes 1 and 2.
fifth defendants continued to render certain services to the plaintiff in
respect of the Works, they did not do so in terms of the Services
Contract or as the JV.”
[24] By no stretch of the imagination can these quoted portions be interpreted as
an admission regarding the completion date of the contract . As a result, I am unable
to agree that , by seeking the amendments, the appellant sought to withdraw an
admission or that the amendment was aimed at introducing a change of tact
regarding formulation of the appellant’s defences. In any event, the case law shows
that even an amendment amounting to the introduction of a new cause of action may
be permitted, provided it is bona fide.8 Nor is there any evidence of mala fides by the
appellant seeking the amendment.
[25] Since the timeframes of the completion of the Works in terms of the contract
are not common cause between the parties, the issue of whether prescription arises
is also not common cause, and as a result, the application for leave to amend is not
the appropriate stage to decide that issue , but at a later stage once , once
amendment has been granted.9 It has not been shown that the City will be precluded
from raising it at the appropriate time.10
[26] Moreover, the question of whether the Works as defined in the contract had in
fact reached completion stage, is an issue that may properly be taken up as part of
the adjudication of the merits. Similarly, whether or not the mediation clause is still
applicable to the merits of the dispute between the parties is a matter of
interpretation of the contracts between them, which may more appropriately be dealt
with a t trial stage, not at the stage of deciding whether or not to grant leave to
amend. Whether or not the amendment sought is consequential upon the City’s
amendment is not the determining factor for the granting of leave to amend, and
does not appear to be relevant in relation to the amendments under consideration.
does not appear to be relevant in relation to the amendments under consideration.
8 OK Motors v Van Niekerk 1961 (3) SA 149 (T).
9 Stroud v Steel Engineering Co Ltd and Another 1996 (4) SA 1139 (WLD) said at 1142C-F.
10 Transec (Pty) Ltd v Premier of the Province of the Eastern Cape (416/96) [1998] ZAECHC 4 (16
February 1998) paras 11-14.
[27] To conclude this section, there is no reason to conclude from the record that
either of the intended amendments may be characterised as those which would
cause an injustice to the City that cann ot be compensated by costs, or in respect of
which it cannot be put back for the purposes of justice in the same position as it was
when the pleading which it is sought to amend was filed.11
Paragraph 1.3 of the notice of motion (Prayer of Conditional Special Plea)
[28] The next amendment sought to be made is in the prayer of the Conditional
Special Plea, as follows:
“By deleting the Prayer and by replacing it with “Wherefore the first
defendant prays that the action be stayed pending the referral to and
finalization of the mediation of any dispute relating to the plaintiff’s
claims”.
[29] The unamended prayer reads as follows:
“Wherefore the first defendant prays that the action be stayed pending
the resolution or determination of the plaintiff ’s claims in terms of
clause 12 of the conditions.”
[30] The parties ’ arguments in relation to this amendment a re linked to the
discussion above in relation to paragraphs 1.1 and 1.2 of the notice of motion , and
specifically whether, in terms of the Contract Data, mediation is an available course
for the parties , and accordingly, the considerations already discussed find
application.
[31] An additional observation that may be made here is that , in both the
unamended plea and the amendment, the appellant seeks a stay of proceedings ,
pending resolution by some other means which include mediation. There is no new
11 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) para 89, referring to Moolman v Estate Moolman 1927 CPD 27 at 29.
cause of action sought to be introduced by the amendment which was not included
in the unamended special plea . And the City has already replicated to the
unamended special plea by denying the applicability of mediation . Seen in this light,
the amendment sought to be introduced is not one which will place either party in a
position they 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.12
[32] Moreover, the stay sought amounts to a dilatory plea . It is not the appellant’s
case that litigation will not be available to the City. What t he appellant seeks in the
amendment is a stay pending mediation, which is the only other mechanism (other
than litigation) mentioned in clause 12. That is in accordance with the provisions of
the Contract Data. This is another indication that the City will not suffer prejudice that
cannot be cured, because if the amendment is granted, litigation will still continue in
due course.
[33] In the answering papers , the City also complain ed that the appellant delayed
by some two months before taking any steps to seek to remedy its plea , thus
causing delays. It is not clear in what way the alleged delay has caused any
prejudice to the City, and especially those which cannot be cured by costs. After all,
a party is entitled to seek an amendment at any stage of the proceedings right up to
the moment of judgment .13In any event, we were informed that the main action is
years away from being adjudicated, given the number of interlocutory issues raised
by the various defendants in the matter.
Para 2.1 of notice of motion (para 15 of the plea)
[34] It is most convenient to deal with this amendment by tracing the development
of the pleadings. The City’s original particulars of claim stated as follows:
“Ebesa JV successfully tendered to do the professional services which
had to be performed in three areas: North, South and East of the City
had to be performed in three areas: North, South and East of the City
12 Moolman v Estate Moolman 1927 CPD 27 at 29.
13 Media 24 (Pty) Ltd v Nhleko and Another (109/22) [2023] ZASCA 77 (29 May 2023) para [16].
during the three-year period commencing on 1 July 2013 until 30 June
2016, with an estimated value of 50 million (excluding vat).”
[35] The appellant admitted this paragraph . T hereafter, the City amended it s
particulars by adding the underlined portion below, to read as follows:
“Ebesa JV successfully tendered to do the professional services which
had to be performed in three areas: North, South and East of the City
during the three-year period commencing on 1 July 2013 until 30 June
2016 which professional services were extended until practical
completion on 17 July 2019 , with an estimated value of 50 million
(excluding vat).
[36] It is immediately apparent that the City’s amendment introduced the very
issue in respect of which the parties disagree, namely the duration of the contract.
This is why the appellant sought to effect its own amendment, by adding the
underlined portion below:
“Other than to deny that the Services Contract was extended , the first
defendant admits the allegations in these paragraphs.”
[37] The amendment was a consequence of the City’s amendment. It was not a
withdrawal of an admission because, as already discussed above, it is abundantly
clear from the unamended plea that the appellant does not agree that the contract
was extended.
[38] In support of its objection against this amendment, t he City relies on the
contents of the joint venture agreement, which is annexed to its particulars of claim,
to advance its case that the obligations of the members of Ebesa JV have not
ceased. In particular, the City refers to clause 3.2 thereof, which provides as follows:
“3. Joint Venture General
…
3.2. Termination
The operation of the Joint Venture and the validity of the
Agreement shall terminate if and when it becomes
evident that the Joint Venture will not be awarded the
Contract or, if the Joint Venture secures the Contract,
when all obligations and rights of th e Joint Venture and
the Members in connection with the Contract and the
Agreement have
ceased and/or been satisfactorily discharged.”
[39] This termination clause makes it clear that Ebesa JV would only cease when
“all obligations and rights of the Joint Ven ture and the Members in connection with
the Contract and the Agreement have ceased ” or once the contract has been
satisfactorily discharged. Based on this clause, t he City argues that the fact that the
appellant has pleaded that the third and sixth defendants are liable elsewhere in the
plea, this means the obligations and rights of the members of Ebesa JV have not
ceased. The court a quo agreed with the City, stating that there was no basis for the
appellant’s denial of the extension of the services contract 14. As I have already
mentioned, whether there is merit in either party’s claim regarding the extension of
the contract is clearly a matter for determination at trial stage.
[40] The court also noted that the particulars of claim were amended to include the
allegations regarding extension of the contract without any objection from the
appellant. It is relevant in this regard that, before the City’s amendment to its
particulars, the appellant had already pleaded that the services contract, the JV
Agreement and Ebesa JV had all terminated on 30 June 2016, as set out in the
numerous paragraphs already adverted to earlier. The fact that it did not object when
the City sought to the amend its particulars by inserting allegation s of extension of
the services agreement, does not mean that the appellant changed its position as
reflected in its plea.
[41] And the fact that the appellant did not agree that the services contract was
[41] And the fact that the appellant did not agree that the services contract was
extended was not a basis for objecting to the City's am endment. This is in line with
14 At para [34].
the well -trodden principle of rather allowing amendments to ensure that the real
dispute between litigants is adjudicated. 15 Had the appellant objected to the City's
amendment, the objection would have been met with the critic isms currently levelled
at the City, to the effect that they seek to argue the merits of the matter, in
circumstances where the amendment will not result in prejudice that cannot be
cured.
[42] Since the appellant had already admitted the contents of the paragraphs
which the City amended by alleging extension of the contract, the appellant could
only but seek to amend that admission, which it now seeks to do. If the appellant is
not permitted to effect a consequential amendment to its plea in keeping with the
amended particulars, it is the party which stands to be irreparably prejudiced.
Paragraphs 2.2 and 2.3 notice of motion (paras 23 & 24 of the plea)
[43] The next amendment is a response to paragraph 23 of the particulars of
claim, where the City pleaded as follows:
“Ebesa JV performed professional work in respect of the project under
the management and control of Andre Broderick who coordinated and
managed the project for the City.”
[44] In its plea the appellant originally pleaded as follows:
“Not only did the first to fifth defendants, and not the JV, render
services to the plaintiff in respect of the Works, Alwyn Laubscher of the
fourth defendant was appointed as the principal agent in resp ect of the
Works.”
[45] The intended amendment is to read as follows:
15 See Media 24 (Pty) Ltd v Nhleko and Another (109/22) [2023] ZASCA 77 (29 May 2023) para 16.
Moolman v Estate Moolman 1927 CPD 27 at 29. Affordable Medicines Trust and Others v Minister of
Health and Another [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) para 9.
“The first to fifth defendants, and not the JV, rendered services to the
plaintiff in respect of the Works.”
[46] Thus effectively , the appellant seeks to delete the allegation that Alwyn
Laubscher of the fourth defendant (“ Laubscher”) was appointed as the principal
agent in respect of the Works. The explanation for this amendment is that the
original plea was prepared under severe time pressure, and the legal representatives
did not have adequate time to properly consider the vast amounts of documents
relating to the matter . Nor did they have time to properly consult with the
representatives of the appellant or any of the other defendants in the main action. It
was only after receipt of the amended particulars that it became apparent to the legal
representatives that the allegation that Laubscher was the principal agent was
erroneous, and was not supported by the contents of the JV agreement and the
services contract.
[47] The City was not satisfied with this explanation , citing the amount of time that
the appellant took before delivering its plea , which was some six weeks . It also
states that the information regarding the identity of the principal agent constitutes
factual information which was at all times within the appellant's knowledge as a
member of the Ebesa JV , and should accordingly stand. This is particularly so given
that no grounds were advanced for its withdrawal, and given that the appellant failed
to explain when and how the mistake arose . The City’s overriding objection is that
the appellant is seeking to retract an admission which it previously made, which is
impermissible and prejudicial to it . The court a quo agreed with all the City ’s
objections.
[48] There are several difficulties in this regard . The first concerns whether the
allegation made in the plea constitutes an admission . The City ’s averment that
“Ebesa JV performed professional work in respect of the project under the
“Ebesa JV performed professional work in respect of the project under the
management and control of Andre Broderick who coordinated and managed the
project for the City’, remains denied, both in the current plea and in the plea that is to
be amended. The City had not pleaded that Laubscher was the principal agent, and
had instead identified someone else. It was the appellant who volunteered the name
of Laubscher. And the City did not replicate thereto , thus effectively denying the
allegations in the plea.16
[49] Furthermore, Laubscher is the fourth defendant in the main proceedings.
Although it does not appear that he has disputed the allegations contained in the
unamended plea concerning him, one imagines a scenario where he may well do so
in due course . This appears to be more than a possibility given the Service
Agreement attached to the particulars of claim, which does not contain Laubscher’s
name and instead identifies one “PAC Engelbrecht” in his capacity as “Principal
Agent/Team Leader”. Without deciding the factual correctness of that document, it
would be inequitable in those circumstances, if the fourth defendant were bound to
an averment made in the plea of the appellant.
[50] As the SCA stated in Saayman v Road Accident Fund 17:
“In the context of civil proceedings an admission is a statement against
interest which has the effect of binding the party on whose behalf it is
made. If that effect is absent the statement cannot amount to an
admission and the well -established rules relating to the withdrawal of
admissions cannot apply to it. In fact a withdrawal is, strictly,
unnecessary and prejudice to the other party is not an issue. An
admission, in its formal sense, also requires at least an intention,
explicit or inferred, and unequivocal, to remove a fact that depends on
proof from the field of contention.”
[51] The allegation sought to be withdrawn was clearly made against the interests
of a party other than the appellant, namely Laubscher. T his is a clear indicatio n that
it is not an admission. It demonstrates why the averment made in the plea
concerning the identity of the principal agent cannot be held to be binding upon the
appellant (or upon the fourth defendant) , and remains an issue that remains for
determination at trial.
16 Uniform Rule 25(2). See Erasmus at D1 Rule 25-1 and D1 Rule 29-4.
16 Uniform Rule 25(2). See Erasmus at D1 Rule 25-1 and D1 Rule 29-4.
17 Saayman v Road Accident Fund (329/09) [2010] ZASCA 123; 2011 (1) SA 106 (SCA); [2011] 1 All
SA 581 (SCA) (30 September 2010) para [28].
[52] Furthermore, as is regularly found in trials, t here is every possibility that the
name of the principal agent may well change during oral evidence. As the court
stated in Robinson v Randfontein Estates Gold Mining Co. Ltd18 “pleadings are made
for the Court and not the Court for the pleadings” , and “no Court would so interpret
the rules, unless thereto compelled by the plain meaning thereof, as to create a
situation wherein the Court loses its power to allow such amendments t o the
pleadings as are designed to ensure that the real issue between the parties is
determined.”
[53] In any event, although the amendment seeks to remove the name of
Laubscher from paragraph 23 of the plea, the fourth defendant (Laubscher) remains
identified as one of the parties 19 who rendered services to the plaintiff in respect of
the Works, though not as part of the Ebesa JV. The appellant’s averment that the
Ebesa JV was not involved is not new and is consistent with the remainder of the
plea as already discussed earlier. The remainder of the City’s particulars at issue
remain denied. Thus, it is difficult to see what prejudice is to be visited upon the City
by the amendment.
[54] It is correct that an applicant seeking an amendment must provide a
satisfactory explanation for such an application . But, as the case law indicates, that
is only one of the factors to be taken into account when deciding whether or not to
grant such an application. Another significant consideration which applies in this
case is that there has not been a withdrawal of an admission , as already adverted
above.
[55] But, an inadequate explanation will not always be a bar to grant of an
amendment. As the court held in Zarug v Parvathie 20: ‘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
necessity for the amendment has arisen through some reasonable cause, even
18 Robinson v Randfontein Estates Gold Mining Co. Ltd. 1925 AD 173 at 198.
19 First to fifth defendants are referred to.
20 Zarug v Parvathie NO 1962 (3) SA 872 (D) 876 B-C.
though it be a bona fide mistake.’ In my view, the appellant’s explanation falls within
the confines of this quote, and , although it may more appropriately be described as
negligent or reckless, there is no evidence of mala fides in the explanation furnished
for its laxity.
[56] There is also to consider that the effect of the refusal of the amendment in this
case is that the appellant is now bound by what it has already explained is an error in
its pleadings. It is not unforeseeable that, at some stage during the trial, the issue will
raise its head, with eith er the appellant seeking to resile from the allegation, or the
fourth defendant seeking to deny it, by leading evidence to refute it. That is the exact
opposite of the principal objective s to be taken into account when considering this
kind of application, namely a proper ventilation of the real dispute between the
parties21, and ensuring that as many relevant facts and material as possible are
placed before a court, to facilitate and expedite the determination of the real issue
between the parties22.
[57] As the court stated in Whittaker v Roos and Another; Morant v Roos and
Another23:
“… 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. We are here for t he purpose of seeing that we have a true
account of what actually took place, and we are not going to give a
decision upon what we know to be wrong facts. It is presumed that
when a defendant pleads to a declaration he knows what he is doing,
and that, when there is a certain allegation in the declaration, he knows
that he ought to deny it, and that, if he does not do so, he is taken to
admit it. But we all know, at the same time, that mistakes are made in
pleadings, and it would be a very grave injustice, if for a slip of the pen,
or error of judgment, or the misreading of a paragraph in pleadings by
or error of judgment, or the misreading of a paragraph in pleadings by
21 Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd [2003] ZASCA 144; 2004 (3)
SA 160 (SCA) at para 12.
22 Sondorp and Another v Ekurhuleni Metropolitan Municipality [2013] ZALAC 13; (2013) 34 ILJ 3131
(LAC) at para 66.
23Whittaker v Roos and Another; Morant v Roos and Another 1911 TPD 1092 at 1102 - 1103.
counsel, litigants were to be mulcted in heavy costs. That would be a
gross scandal. Therefore, the court will not look to technicalities, but
will see what the real position is between the parties.”
[58] The above excerpt exemplifies the practical approach adopted by our courts
over the years , now including the Constitutional Court 24, to generally allow an
amendment unless 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. I have not found any evidence of mala fide motives in the appellant’s
application for the amendment. In fact, as I have already indicated, the unamended
plea potentially has a n adversarial effect on the fourth defendant more than the
appellant.
Paragraph 2.6 notice of motion (paras 44 of the plea)
[59] The C ity amended paragraph 37 of its particulars by replacing the struck -
through text below with the bold text:
“In consequence of the aforesaid negligence” [In breach of their
aforesaid obligations], the video screen wall had to be demolished
and rebuilt and a new structural support system had to be built in an
already completed area of the new NCC building, with concomitant
delays in the practical completion dat e of the project and financial
losses for the City.”
[60] After the amendment above, t he appellant sought to amend paragraph 44 of
its plea by deleting the struck -through text below, and inserting the underlined
portion:
24 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) paras 89 – 90, relying on Moolman v Estate Moolman 1927 CPD 27 at 29.
“Other than to deny that it was negligent or breached any of its
obligations or duties to the plaintiff and that it is liable for any delay or
losses suffered by the plaintiff, if any, the first defendant admits the
allegations in this paragraph”.
[61] The struck -through deletion was not opposed and was granted. The
underlined insertion remains at issue. The City states that the amendment amounts
to retracting an admission, and it will suffer prejudice if it is allowed. In both the
notice of objection an d the answering affidavit opposing the amendment it is stated
that the amendment to City’s particulars of claim did not constitute a basis for an
amendment because, save for the word ‘negligence’, it read exactly the same as the
original particulars. The court a quo effectively agreed with the City , referring to its
reasoning in respect of paragraphs 2.1 and 2.2 which I have already de alt with in
paragraphs 34 to 42 above.
[62] It is difficult to understand the City's objection in this regard. The appellant
continues to admit the City’s allegations that “the video screen wall had to be
demolished and rebuilt and a new structural support system had to be built in an
already comple ted area of the new NCC building, with concomitant delays in the
practical completion date of the project and financial losses for the City ”. It also
continues to deny negligence and breach of any obligation or duty towards the City.
The phrase it wishes t o insert amplifies its denial of liability by specifying liability for
any delay or losses suffered by the City. Even in the heads of argument on appeal,
the City has not specified what admission it claims is sought to be withdrawn by the
amendment. No case for prejudice has been made out in my view if the amendment
is granted.
Paragraph 2.7 notice of motion (paras 48 of the plea)
[63] The appellant wishes to delete the struck -through portion at paragraph 48 of
its plea, as follows:
its plea, as follows:
“The completion of the Wo rks was delayed by numerous factors such
as, inter alia, the approval of the requisite building plans was delayed
as the applications for rezoning, subdivision and consolidation of the
properties on which the Works had to be performed was not timeously
attended to recorded or registered by the plaintiff”
[64] It is unconscionable that the City has raised an objection in regard to this
amendment, which is quite clearly a stylistic or grammatical amendment. Yet the City
states it amounts to a withdrawal of an admission. Similar to the amendment
discussed immediately above , the City also compla ins here that this amendment is
not consequential upon the amendment to its particulars. But th at is no bar to an
amendment. There is no discernible prejudice to be visited by the City if this
amendment is granted.
[65] For all the reasons discussed, the appeal ought to succeed.
C. COSTS
[66] There is no reason why costs should not follow the result . The appellant has
been successful on appeal and is entitled to its costs on appeal.
[67] When the SCA grant ed leave to appeal to this Court, it set aside the cost s
order of the court a quo in dismissing the application for leave to appeal . It also
reserved the consideration of those costs, plus the costs of the application for leave
to appeal in the SCA, as costs in this appeal.
[68] The effect of this judgment is that the City’s objections have been without
merit from the start. As a result, the costs order granted against the appellant in the
court a quo should be reversed , specifically from the delivery of the City’s Notice of
Objection on 9 February 2022 . Similarly, the costs order granted by the court a quo
in the leave to appeal should be reversed. Finally, the appellant should not be
placed out of pocket and should also be able to recoup its costs in the SCA appeal.
D. ORDER
[69] For all these reasons, I would make the following order:
1. The appeal is upheld;
2. The order and judgment of the court a quo is set aside and replaced with
the following:
2.1 The appellant is granted leave to amend its Conditional Special Plea
as follows:
2.1.1 By deleting the phrase “ failing which such a dispute would first
be referred to either mediation or adjudication, and then to
arbitration” in paragraph 2 thereof and by repl acing it with
“failing which such a dispute would be referred to mediation”.
2.1.2 By deleting the phrase “ nor was the dispute ever referred to or
determined by mediation, adjudication or arbitration ” in
paragraph 3 thereof and replacing it with “ nor was the d ispute
ever referred to mediation”.
2.1.3 By deleting the Prayer and by replacing it with “ Wherefore the
first defendant prays that the action be stayed pending the
referral to and finalisation of the mediation of any dispute
relating to the plaintiff’s claims”.
2.2 The applicant is granted leave to amend its Plea as follows:
2.2.1 By deleting paragraph 15 and replacing it with:
“15. Other than to deny that the Services Contract was
extended, the first defendant admits the allegations
in these paragraphs.”
2.2.2 By deleting paragraph 23 and replacing it with:
“23. The first to fifth defendants, and not the JV,
rendered services to the plaintiff in respect of the
Works.”
2.2.3 By deleting the phrase “ Alwyn Laubscher of ” where it appears
in paragraph 24.
2.2.4 By deleting the wo rds “ was negligent or ” where it appears in
paragraph 44.
2.2.5 By inserting the phrase “ and that it is liable for any delay or
losses suffered by the plaintiff, if any ” between “ the plaintiff ”
and “the first defendant” where it appears in the second line of
paragraph 44;
2.2.6 By deleting paragraph 48 and replacing it with:
“48. The completion of the Works was delayed by
numerous factors such as, inter alia , the requisite
building plans were not approved on time as the
applications for rezoning, subdivision and
consolidation of the properties on which the Works
had to be performed was not timeously attended to,
recorded or registered by the plaintiff.”
3. The respondent must pay the costs of and related to the appellant’s
application for leave to amend from the date of delivery of its Notice of
Objection onwards, including the costs of counsel on Scale B;
4. The appellant must pay the wasted costs occasioned by the amendment of
its Plea, including the costs of counsel on Scale B, for the period prior to
the delivery of the respondents Notice of Objection;
5. The respondent must pay the costs of the appellant’s application for leave
to appeal in the court a quo, including the costs of counsel on Scale B;
6. The respondent must pay the costs of the appellant’s application for leave
to appeal in the Supreme Court of Appeal , including the costs of counsel
on Scale B;
7. The respondent must pay the costs of this appeal, including the cost of
counsel on Scale B.
______________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
I agree. It is so ordered.
______________________
T. NDITA
Judge of the High Court
I agree.
______________________
per permission
K. SAVAGE
Judge of the High Court
APPEARANCES
For the appellant : Adv D. Van Der Merwe
Instructed by : Adams Attorneys
S. Adams
For the respondent : Adv R. Williams
Instructed by : Mosdell Pama & Cox
P. Pama