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[1993] ZASCA 4
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Group Five Building Ltd. v Government of the Republic of South Africa, Represented by Minister of Public Works and Land Affairs (400/91) [1993] ZASCA 4; 1993 (2) SA 593 (AD); [1993] 2 All SA 127 (A) (18 February 1993)
CASE NO 400/91
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
GROUP FIVE BUILDING
LIMITED
Appellant
and
THE GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA, REPRESENTED BY THE
MINISTER OF PUBLIC WORKS AND
LAND
AFFAIRS
Respondent
CORAM
: CORBETT CJ, HEFER, VIVIER, EKSTEEN, JJA, et KRIEGLER AJA.
DATE OF HEARING
: 10 November 1992.
DATE OF JUDGMENT
: 18
February 1993.
JUDGMENT
CORBETT
CJ /
2
CORBETT
CJ:
The appellant company carries on business
as a building and engineering contractor. On about 5 May 1983 appellant entered
into a contract
with the respondent, the South African Government (represented
by the Director-General: Community Development), in terms whereof
appellant
undertook to erect certain buildings at Walldoorn, Pretoria ("the building
contract"). In July 1988 appellant instituted
action in the Transvaal Provincial
Division claiming payment of the sum of R632 578,95, interest and costs of suit.
This claim was
alleged to arise from the building contract. The respondent took
exception to appellant's particulars of claim on the grounds that
it disclosed
no cause of action or, alternatively, was vague and embarrassing. At first
instance the exception was upheld by Streicher
J, who ordered that "plaintiff's
action is dismissed with costs". An appeal to the Full Court of the
Transvaal
3
was dismissed with costs (Leveson J, Joffe J and Myburgh
AJ
concurring) . The judgment of the Full Court has been
reported: See
Group Five Building Ltd v Government of
the Republic of South Africa (Minister of Public Works
and Land Affairs)
1991 (3) SA 787
(T). Subsequently
special leave to appeal to this Court was granted.
In appellant's particulars of claim the various
contract documents are referred to and the relevant ones,
or relevant portions thereof, are annexed. They consist
of a tender, an acceptance of tender, a bills of
quantities contract, certain conditions of contract and
clauses 49 and 50 of a schedule of quantities. The
particulars of claim (paras 8 and 9) specifically quote
clause 17(1), (ii) and (iii) and clause 18 (B)(ii)(a) and
(b) of the conditions of contract. They read as
follows:
"17.(i) The Contractor shall be allowed from the time the site is handed over
to him 14 days for the delivery and
4
arrangement of his plant and material, and at the expiration of the said 14
days the said works shall be commenced and proceeded with,
with all due
diligence to the satisfaction of the Engineer, and the whole works shall be
completed within nine (9) months from the
date of the letter of acceptance of
tender. The site shall be handed over to the Contractor within 14 days after he
has complied
with the conditions of tender relating to security and the
submission of priced schedules of quantities if applicable.
(ii) If the Works shall be delayed by cessation of work by any workmen,
inclement weather, or by any omissions, additions, substitutions
or variations
of the Works, or of any items of work, labour or material, or by any other
causes beyond the Contractor's control then
the Contractor shall have the right
within 21 days of any such cause of delay arising,
5
to apply in writing to the Director-General:
Community Development through the Engineer to extend the date of completion
mentioned
in subsection (i) of this clause, stating the cause of delay and
period of extension applied for.
(iii) The Director-General: Community Development upon receipt
of such written application together with the report thereon of the
Engineer may
by order in writing extend such date of completion by a period to be determined
by him, or may refuse to extend such
date of completion , or may postpone giving
a decision upon such application until completion of the contract period set out
in sub-section
(i) of this clause; the date of completion will be extended only
to the extent approved by the Director-General: Community Development,
and in
the assessment of the liquidated damages provided for in this Contract, no
allowance shall be made to the Contractor for any
delay
6
other than for the period of extension (if any) approved of by the
Director-General: Community Development.
18
(B)(ii)(a) If the Contractor elects to
furnish a cash deposit of 10 per cent of the total amount of the Contract, or
any approved guarantee for this sum, the Clause 18 as
above shall apply mutatis
mutandis and the Director-General: Community Development shall have the right to
adopt and exercise any
one or more courses as provided in the foregoing
sub-section A; or to allow the Contractor to proceed with the Works and to
deduct
as and for liquidated and agreed damages a sum of R620-00 (Six hundred
and twenty Rand) per day, for each day on which the completion
of the Works may
be in arrear under Clause 17 of these Conditions. Such sum may be deducted from
any sum due or to become due under
this or any other contract heretofore or
hereafter existing between the Contractor and the Government,
7
or may be recovered by action in any competent Court of
Law.
(b) The Director-General: Community Development is hereby authorised to
deduct the said sum, and the Contractor hereby agrees and
binds himself not in
any way to dispute the right so to deduct or the amount deducted."
Par 10.1 of the particulars of claim proceeds
to aver that on a proper interpretation of clauses 17(i),
(ii) and (iii) and 18(B)(ii), inter alia -
"The causes of delay for which the Director General: Community Development
was entitled and obliged to grant extension of time extending
the completion
date of the Works, did not include any act and/or default and/or breach of
contract on the part of the Defendant or
of the Engineer, or any act or default
of any person for whose act or default the Defendant or the Engineer are
responsible, except
those acts of the Engineer referred to in Clause 17(ii),
namely "any
8
omissions, additions, substitutions, variations of the
Works".
And in par 10.2 it is stated:
"The said causes of delay not so included are hereinafter referred to as the
'wrongful causes of delay'".
Paras 11 and 12 of the particulars of claim read as follows:
"11.
It was an express,
alternatively
tacit,
further alternatively
implied term of the contract between the parties that:-
11.1
all variations and
instructions would be given timeously in relation to the actual progress of the
works,
alternatively
at an opportune time,
further alternatively
in such a way and at such a time so as not to disrupt the general progress or
momentum or method or sequence of construction of the
works by the
Plaintiff;
11.2
in the event of late or
inopportune instructions or variations, Plaintiff would be entitled to extension
of time
9
and/or additional remuneration and/or damages caused by such variations or
instructions.
12. It was in the contemplation of the parties that if any delays or failure
timeously to issue instructions and/or variations should
occur or if Plaintiff's
program of work should be altered or additional work be ordered to be done, then
the execution of the works,
the Plaintiff's planning thereof and the allocation
by the Plaintiff of resources including labour, plant, material would be
disrupted
or rendered inefficient with consequent additional costs, including
on-site and off-site overhead and administrative
costs."
In paras 14 and 15 it is alleged that the
completion of the works was delayed by various wrongful causes of delay "which
constituted
breaches
of
contract
on the Defendant's part and in
particular
breaches
of
the terms
set out in paragraph 11 above"
(my emphasis).
10
Five such wrongful causes of delay are then set forth. The
first of these relates to an alleged delay before the appellant took over
the
building site. The other four are all instances of variations of the contract
which the appellant was instructed in writing to
carry out, each of which is
alleged to have resulted in a delay of a certain number of working days.
Par 16.1 sums it up by alleging that "by reason of the aforesaid and as a
consequence of Defendant's breach of contract an overall
effective delay of 161
workings days. . . . was caused". And in par 18 it is alleged that "as a result
of Defendant's breach of contract
as aforesaid, Plaintiff's progress, momentum,
method and sequencing of construction were disrupted with resultant additional
expense
being incurred by the plaintiff"; and that the "said damages flow
directly from the breaches of contract or alternatively were within
the
contemplation of the parties". A
11
computation of such damages is said to produce
the amount
of R632 578,95 claimed.
In his judgment Streicher J points to the fact
that in terms of clause 3(iii) of the conditions of
contract the
"engineer" (defined by the building contract
to mean "the Department of
Community Development, acting
through the officer deputed generally or
specially to
control or supervise the works") is given certain powers
to issue variation orders. The relevant portion of
clause 3(iii) reads:
"Without invalidating the Contract, the Engineer shall have the right by
means of an Order in Writing, by varying the Drawings, Specification
and Bills
of Quantities, to increase or decrease the quantitites of any item or items or
to omit any item or items or to insert any
additional item or items, provided
the total Contract amount be not thereby decreased or increased in value more
than 20 percent.
Such variations shall be measured and valued at the rates
and
12
prices contained in the Schedule of Quantities and added to,
or deducted from the Contract amount."
The learned Judge held that this power could be exercised
by the engineer
at any time during the progress of the
work. On the strength of this and
other provisions in
the conditions of contract, relating to variations and
extra work, and the provisions of clause 17(ii) and (iii)
- quoted above - in regard to the extension of the
contract period, Streicher J concluded as follows:
"In terms of the building contract, therefore, a variation could be ordered
at any time during the progress of the works. The contract
furthermore expressly
spelled out to what payments the contractor would be entitled in respect of
variations ordered and how the
contractor could get an extension of the contract
period in the event of a delay caused by variations ordered by the engineer. The
term alleged in paragraph 11 that variations would be ordered timeously in
relation to
13
the actual progress of the works or at an opportune time and that in the event
of late or inopportune variations the plaintiff would
not be entitled to
extension of time and payment in terms of the express provisions of the contract
but on another basis, conflicts
with the express provisions of the contract.
In the light of the fact that the term alleged in paragraph 11 conflicts with
the express terms of the contract between the parties
the parties could not have
intended the term to be a term of the contract and such an intention cannot be
imputed to the parties
on the basis that they would have expressed the term if
the question or situation had been drawn to their minds. The term could
therefore
not have been a tacit term of the contract between the
parties."
He held further that the
alleged term could not have been an implied one; and that since appellant's
14
claim was dependent on the term alleged in par 11
of the particulars of claim and this term was in fact not a term of the
contract,
the particulars did not disclose a cause of action and were
excipiable.
The Full Court, for similar reasons, held that the alleged term could not be
held to be part of the contract between the parties (see
reported judgment at
789 B - 790 H). The Court then proceeded to consider whether Streicher J should
have dismissed the action or
whether he should merely have upheld the exception;
and came to the conclusion that there was no ground upon which Streicher J's
order could be altered.
On appeal before us two basic points were argued: (i) whether the
tacit/implied term pleaded in par 11 of the particulars of claim
could form part
of the contract between the parties, and (ii) whether, if the particulars of
claim were excipiable, Streicher J was
correct in dismissing the action.
15
With regard to the tacit (or implied) term,
it
should be noted, in the first place, that although par 11
of the
particulars of claim speaks, in the alternative,
also of an express term to
the same effect, appellant
does not suggest that there is any basis for
claiming
that such an express term formed part of the building
contract. Secondly, it should be pointed out that
Hudson's Building and Engineering Contracts
10 ed by I N
Duncan Wallace at 327 contains the following interesting
remarks with reference to the power to order extras or
alterations to the works:
"A difficult question often arises as to whether a power to order extras or
alterations must be exercised at such a time as not to
affect the economic or
systematic execution of the works. Normally, of course, the ordering of extras
or alterations under a stipulation
conferring power to vary the works is not a
breach of contract: 'Authorised extras and additions are, of course (being
16
authorised and being contemplated by the contract), no breach of contract,
and it is not a breach of contract by the employer to order
something extra....'
While a court would lean against an interpretation which prevented the building
owner varying the work at any
stage, there is, it is submitted, room for an
implication that extras and alterations will be ordered at a reasonable stage in
relation
to the works as a whole, particularly if the provisions for payment for
extras or alterations are such as to preclude the contractor
from recovering the
loss he suffers from the interference with the economic or systematic execution
of the works in addition to the
value of the work done. Whether, however, such a
term can be implied in contracts similar to the modern standard forms is more
doubtful,
since both of these set up machinery whereby variations can be valued
to take account of circumstances rendering the billed or scheduled
rates for
similar work inappropriate, and which presumably include among such
circumstances the late-
17
ness of the relevant instruction."
Hudson quotes no authority cm the point and I have not been able to find any.
I think that there is something to be said for the implication
of such a term
where the contract machinery for valuing variations would not permit of any
remunerative allowance being made for
the lateness or otherwise inopportune
timing of the relevant instruction. This, of course, has a direct bearing on the
finding by
the Court a guo that no such tacit or implied term could co-exist
with the express terms of the building contract. However, I do
not find it
necessary to pursue this aspect of the case for, in my view, the particulars of
claim are in other ways fatally defective
and I think that it is appropriate and
preferable to decide the matter on these other grounds.
The tacit or implied term pleaded in par 11 of the particulars of claim has
two legs to it. The first
18
leg relates to an obligation on the part of the building
owner, i e respondent, to give all variation orders and instructions "timeously
in relation to the actual progress of the works" or, alternatively, "at an
opportune time" or, alternatively, "in such a way and
at such a time so as not
to disrupt the general progress or momentum or method or sequence of
construction of the works" by the appellant.
Pausing here for a moment, I would
observe that these various alternatives hardly accord with the acknowledged
principle that a term
sought to be implied in a contract must be capable of
clear and exact formulation (see Christie
The Law of Contract in South
Africa
2 ed, p 200 and the authorities there cited). The second leg relates
to a right vested in the contractor, i e appellant, to be given
an extension of
time and/or additional remuneration and/or damages in the event of late or
inopportune instructions or variations
being given to him.
19
The kernel of appellant's cause of
action is to
be found in the five allegations concerning delay made in
par 15 of the
particulars of claim. The first of these
(in par 15.1) reads as follows:
"There was a delay from the 5th May 1983 to the 30th June 1983, the latter
date being the date when Plaintiff actually took over the
site and started the
works and for which delay Defendant, on the 3rd February 1987, purported to
grant an extension of 56 calendar
days."
This delay is alleged to have been wrongful and to have constituted a breach
of contract, but no foundation of factual averment for
this legal conclusion is
to be found in the particulars of claim or the annexed documents. The only
relevant provision in the building
contract is contained in par 17(i) of the
conditions of contract quoted above. This is to the effect that the site shall
be handed
over to the contractor within 14 days after he
20
has complied with the conditions of tender relating to
security and the submission of priced schedules of quantities, if applicable.
It
is stated in par 9.2 of ! the particulars of claim that appellant "elected to
furnish an approved guarantee, which guarantee Defendant
(respondent) accepted".
Assuming this to relate to the security referred to in par 17(i), it takes the
matter little further for
no dates are stated. The contract documents evidently
did include priced bills (schedules) of quantities, but the particulars of
claim
do not state when these were submitted. On the averments in the particulars of
claim there is, therefore, no basis for determining
when in terms of the
contract the building site should have been handed over to the contractor; and
consequently there is no ground
for saying that it should have been prior to 30
June 1983. In any event, par 15.1 of the particulars of claim refers not to when
the site was "handed over" (which is the term used in clause 17(i)
21
of the conditions of contract), but to when appellant "took
over" the site. It cannot be assumed that they amount to the same thing
or that
they coincided. Furthermore, it seems extremely improbable that "the 5th May
1983" could have been the date when the site
had to be handed over. That was the
date of the acceptance of tender; and the contractor still had, thereafter, to
comply with the
conditions of tender relating to security and the submission of
the priced schedules of quantities before the obligation to hand
over the site
could accrue. I conclude, therefore, that the particulars of claim disclose no
cause of action in respect of the delay
alleged in par 15.1.
The other four instances of delay relate, as I have indicated, to what are
alleged to have been instructions or variations which constituted
breaches of
the tacit/implied term set forth in par 11 of the particulars of claim and which
were, therefore, wrongful
22
causes of delay. That described in par 15.2 may be taken by
way of example. This sub-paragraph says that whilst work was in progress
on the
"raft foundations" of certain portions of the building the appellant was
instructed in writing on 28 September 1983 "to remove
all clay appearing at the
site of the raft foundations prior to casting the said raft foundations". It is
alleged that as a consequence
of this variation the appellant was delayed by 24
working days. And, as I have stated, the various delays (described in par 15.2,
15.3, 15.4 and 15.5) arising from "wrongful causes" are made the basis for a
claim for damages for breach of contract. The breach
of contract is said to
relate to the tacit/implied term set forth in par 11 of the particulars of
claim, but par 11.2, as I have
shown, alleges that where late or inopportune
instructions or variations are given the appellant has a
contractual
right
to inter alia, "additional remuneration and/or damages caused by
such
23
variations or instructions". The complaints
described in par 15.2, 15.3, 15.4 and 15.5 clearly relate to what in par 11.2
are defined
as "late or inopportune instructions or variations". Consequently,
on the strength of par 11.2 appellant would have a contractual
right to
additional remuneration and/or damages in respect of these complaints and its
remedy would be one for specific performance
of the correlative obligation
resting upon respondent. But the cause of action, as pleaded in paras 14 and 15,
relates not to specific
performance, but to breach of contract. There seems thus
to be an irreconcilable contradiction between the tacit/implied term relied
on
by the appellant and the remedy claimed by it in respect of the aforesaid
complaints. This contradiction goes to the very root
of appellant's cause of
action and consequently, in my opinion, in this respect the particulars of claim
fail to disclose a cause
of action or, at the very least, are
24
wholly vague and embarrassing. In the result
there were
good grounds for holding that the pleading was excipiable
in respect of all five complaints as to delay.
I turn now to the second basic issue, viz.
whether Streicher J was correct in dismissing the action.
In his judgment Streicher J stated the following:
"The defendant asked that the action be dismissed with costs and on behalf of
the plaintiff it was submitted that the exception should
be dismissed with
costs. The plaintiff did not ask for leave to amend its particulars of
claim.
In the premises and in the light of the fact that the plaintiff's particulars
of claim do not contain a cause of action entitling
the plaintiff to any relief
I make the following order:
25
The exception is upheld and the plaintiff's
action is dismissed with costs."
No further reasons for the order dismissing the action
are given. However, in his judgment granting leave to
appeal to the Full
Court Streicher J elaborated on his
reasons by stating:
"Mr
Preis
conceded that had I merely upheld the exception with costs
and had the plaintiff thereafter failed to amend the particulars of claim
the
defendant would have been entitled to an order dismissing the plaintiff's claim
with costs. If that is so there can in principle
be no reason why a successful
excipient to a plaintiff's particulars of claim on the ground that the
particulars of claim contain
no cause of action should not, at the exception
stage, be entitled to an order dismissing the plaintiff's claim if prayed for in
the exception and if the plaintiff does not indicate that he
26
wishes to amend his particulars of claim or at
least that he wishes to consider such an amendment."
This reasoning was, in general, accepted by the Full Court (see reported
judgment at 794 C-l), but, in my view, it is fallacious.
As far as I am aware,
in cases where an exception has successfully been taken to a plaintiff's initial
pleading, whether it be a
declaration or the further particulars of a combined
summons, on the ground that it discloses no cause of action, the invariable
practice of our Courts has been to order that the pleading be set aside and that
the plaintiff be given leave, if so advised, to
file an amended pleading within
a certain period of time. Such leave has been granted, in my experience, in
cases where judgment
has been reserved, irrespective of whether at the hearing
of the argument on exception the plaintiff applied for such leave or not.
No
doubt this was done in anticipation of
27
the possibility that the plaintiff would wish to have leave to
amend and in order to obviate the need for a specific application.
The important
point to be stressed, however, is that until the order setting aside the
pleading has been granted, there is no need
for the plaintiff to seek leave to
amend. Where judgment is given immediately, i e at the conclusion of the hearing
of argument,
the appropriate time for such an application would at the earliest
be at the conclusion of the judgment when the order setting aside
the pleading
has been made. Where on the other hand (as in this case) judgment is reserved a
different situation arises. At the time
of reservation there is no order setting
aside the pleading and indeed there is then (at least) the possibility that the
exception
may fail. Of course, a plaintiff may then ask for leave to amend in
the event of the exception succeeding, but I can see no reason
why he should at
that stage be obliged to do so. The
28
appropriate and obligatory time for making the application
would accordingly be once judgment setting aside the pleading has been
delivered. I cannot, therefore, with respect, agree with Streicher J that in the
absence of an indication at the time of the hearing
of the exception that
plaintiff in this case (the appellant) wished to amend its particulars of claim,
the successful excipient was
entitled to an order dismissing the plaintiff's
action. Moreover, by reserving judgment and then granting an order, as part of
his
reserved judgment, dismissing the action the learned Judge effectively
denied the appellant its proper opportunity to apply for leave
to amend.
An order dismissing an action puts an end to the proceedings and means that
if the plaintiff wishes to pursue his claim on a different
pleading he must
start de novo. This may have drastic consequences for the plaintiff,
particularly where it results in the
29
prescription of the claim. In my opinion, it would
be
contrary to the general policy of the law to attach such
drastic
consequences to a finding that the plaintiff's
pleading discloses no cause of
action. Here the analogy
of a defective summons springs to mind. And the
cases
of
Trans-African Insurance Co Ltd v Maluleka
1956 (2) SA
273 (A) and
Prudential Assurance Co Ltd v Crombie
1957
(4) SA 699 (C) illustrate the reluctance of the courts to
deny the plaintiff the opportunity to amend his summons,
even if fatally defective by reason of its failure to
state a cause of action.
Moreover, in my view, in this regard no distinction should be drawn between
the case where action is initiated by way of summons,
followed by a declaration,
and the case where the plaintiff sues out a combined summons. In the judgment in
the case of
Natal Fresh Produce Growers' Association and Others v Agroserve
(Pty) Ltd and Others
1991 (3) SA 795
(N) there are
30
certain dicta (at 800 F - 801 C) which suggest that a
distinction must be drawn between these two cases; that an exception
successfully
taken to a declaration may leave the summons standing as an "empty
husk" to sustain the action; but that in the case of a combined
summons the
setting aside of the particulars of claim as a consequence of a successful
exception causes the whole action to fall
away because the summons can have no
existence independent of the particulars of claim. It would seem to be a
corrollary to these
propositions that when an exception is successfully taken to
the particu-lars of claim in a combined summons on the ground that no
cause of
action is disclosed, there is no room for the grant of leave to amend the
particulars. This, in my opinion, does not constitute
the law and practice of
our courts. As long ago as 1915 Bristowe J put the position thus:
31
"As was said by INNES, C.J., in
Coronel v Gordon Estate Gold Mine
(1902, T.S., at p. 115) 'the effect of a successful exception is that the entire
declaration is quashed,' meaning as I understand
that it is an absolute bar to
any relief being obtained on that declaration. But it does not take the
declaration off the file or
place the case in the same position as though no
declaration had been delivered. Otherwise the proper order when an exception is
upheld would be to extend the time for filing a declaration, not to give leave
to amend. Leave to amend presupposes that there is
something which can be
amended. Still less can it be said that a successful exception destroys the
action. If this were so then the
case of
Currey v Germiston Municipality
(1910, L.L.R. 191), where an order for absolution under rule 41 was granted
after a declaration had been successfully excepted to
and had not been amended,
would have been wrongly decided. It seems to me therefore that the action in the
present case is still
on foot and that there is a declaration in existence."
(
Johannesburg
32
Municipality v Kerr
1915 WLD 35
, at 37; see also
Berranqe v Samuels II
1938 WLD 189
;
Santam Insurance Co Ltd v Manqele
1975 (1) SA 607
(D), at 608 B-D, 609 G -610 D).
And I would again refer to the cases quoted above in regard to the amendment
of a defective summons. A circuit court summons is, and
in the Cape previously
was, similar to a combined summons. Although the point was not debated in that
case,
Gillespie v Toplis and Another
1951 (1) SA 290
(C) provides an
instance of a circuit court summons being set aside on exception on the ground
that it failed to disclose a cause
of action and of leave being granted to the
plaintiff to file an amended summons, if so advised.
For these reasons I hold that Streicher J erred in dismissing the action. He
should have set aside the particulars of claim and given
leave to amend or, at
any rate, after delivery of judgment given the appellant the
33
opportunity to apply for leave to amend. In the result the
appeal fails on one issue and succeeds on the other issue; and the question
is
how to allocate the costs on appeal to this Court and the costs in the Courts a
quo. There are also the costs of the application
for leave to appeal to the Full
Court, which were ordered by Streicher J to be costs in the appeal; and the
costs of the application
for leave to appeal to this Court, which were also
ordered to be costs in the appeal.
As far as the hearing on the exception
before Streicher J is concerned, the proper order would have been one upholding
the exception
and setting aside the particulars of claim, but giving leave to
amend. It would be appropriate for this order in respondent's favour
to carry
costs. Before the Full Court the appellant ought to have failed cm the issue
concerning the excipiability of the particulars
of claim, but succeeded on the
issue as to the form of order granted by
34
Streicher J. This would amount to substantial success, but on
the other hand it may prove to be a hollow victory should the appellant
be
unable or unwilling effectively to amend its particulars of claim. Furthermore,
the two issues evidently assumed equal importance
in argument before the Court a
quo. In all the circumstances I think that justice would be served if appellant
were granted half
its costs of appeal to the Full Court and it were declared
that this carried the costs of the application for leave to appeal to
the Full
Court; and if a similar order were made in regard to the appeal, and the
application for leave to appeal, to this Court.
It is ordered as follows:-
(1) The appeal is allowed in part and the order of the Court a quo is altered
to read:
35
"(a) The appeal is allowed in part and the order of Streicher
J is altered to read:
'The plaintiff's particulars of claim are set aside with costs and plaintiff
is given leave, if so advised, to file amended particulars
of claim within one
month'.
(b) Appellant (plaintiff in the Court a quo) is entitled to half his costs of
appeal."
(2)
The period of one month
referred to in par 1(a) above shall run from the date of delivery of this
judgment.
(3)
The appellant is entitled to
half his costs of appeal to this Court.
(4)
It
is declared that in terms of the orders made the appellant is entitled to the
costs of the application for leave to appeal to the
Full
36
Court, as well as the costs of the application for leave to appeal to this
Court.
M M CORBETT
HEFER JA)
VIVIER JA)
EKSTEEN JA) CONCUR
KRIEGLER AJA)