IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, PIETERMARITZBURG
In the matter between:
NEDBANK LIMITED
And
RH I DAN INVESTMENTS 95 (PTY) LTD
YOUGANDRENGOVENDER
CASE NUMBER: 805/2024P
APPLICANT/PLAINTIFF
FIRST RESPONDENT/ DEFENDANT
SECOND RESPONDENT/ DEFENDANT
JUDGMENT
P C BEZUIDENHOUT J:
[1] Applicant/Plaintiff brought an application on 8 July 2024 for summary judgment
against Respondent/Defendant. (The parties are hereinafter referred to as Plaintiff and
Defendants)
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[2] Defendants filed their opposing affidavit to the summary judgment application late
which caused the matter to be adjourned for Plaintiff to consider the affidavit and decide
what steps to take thereafter.
[3] After the matter was adjourned, on 9 September 2024, Plaintiff filed a notice in
terms of Rule 28(1) to amend its notice of motion in respect of the application for summary
judgment. The amendments entailed the following:
(a) By deletion of the words "Respondent/Defendant" in paragraph 1 and to
replace it with the words "for summary judgment in its favour as against the".
(b) By insertion of the words "Respondents/Defendants" where they appear in
the first paragraph after the words "for summary judgment in its favour as
against the".
(c) By deletion of the word "is" where it appears in the first paragraph before
the word "jointly and severally liable".
(d) By the insertion of the word "are" where it appears in the first paragraph
before the words "jointly and severally liable".
[4] The notice to amend was objected to by Defendants who filed a notice of objection
to the notice of intention to amend. This was filed during September 2024 wherein they
raised four objections. Firstly that the person who attested to the affidavit must be
competent to do so. Secondly that Plaintiff would seek judgment in terms of the prayer
in the affidavit deposed to in support of the application for summary judgment in terms of
a notice of motion wh ich did not exist at the time. The third objection that there had to be
appearance on 8 July 2024 and the fourth objection that Defendants had already
prepared their answering affidavit and the issue of costs and the prejudice wh ich resulted
therefrom.
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[5] This then necessitated a formal application by Plaintiff to amend its notice of motion
which was brought in December 2024 and which was opposed by Defendants. In its
founding affidavit Plaintiff contends that the errors which they seek to amend are
typographical in nature and considering the language in the notice of motion as well as in
the affidavit it is clear that the affidavit seeks judgment against both Defendants jointly
and severally. It was overlooked that the notice of motion only referred to
Defendant/Respondent and thus in the singular. The affidavit opposing summary
judgment is deposed to by Second Defendant who states that it was also done on behalf
of First Defendant. The issues raised therein in respect of summary judgment are not
relevant at this stage as the only issue which has to be decided at this stage is whether
the amendment to the notice of motion is to be granted or not.
[6] It is contended by Plaintiff that Defendants were not misled by any of the
typographical errors as appears from the answering affidavit. It was further contended
that the amendment could be made in terms of Rule 28 and could be done at anytime
before judgment was granted. The costs of the appearance on 8 July 2024 were not
waisted and the matter had to be adjourned because Defendants delivered their affidavit
out of time.
[7] At the commencement of the argument in respect of the opposition to the
amendment condonation was sought by Defendants for the late filing of their heads of
argument. This was not opposed by Plaintiff and accordingly condonation was granted.
[8] It was submitted on behalf of Plaintiff that it was typographical errors which had to
be corrected and ~hat allowing amendments to pleadings should be to do justice between
the parties by deciding the real issues between them. It was contended that Defendants
basically objected on four grounds:
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(a) That the deponent to the Plaintiff's affidavit did not have personal
knowledge;
(b) If the amendments were allowed the affidavit in support of summary
judgment would not make chronological sense as Plaintiff would be seeking
judgment in terms of the notice of motion which did not exist at the time.
(c) The amendment if allowed Defendants would be permitted to make
consequential amendments to the answering affidavit which makes a
mockery of the Rule and
(d) Defendants have incurred costs securing counsel to appear in a matter on
the unopposed roll which costs are waisted.
[9] It was submitted that there was no prejudice to Defendants, that Defendants have
failed to state what adjustments they need to make to their defence should the
amendments be granted and that the costs should be paid by Defendants although the
party normally seeking an amendment is to bear the costs. The reason therefore is that
the opposition is not reasonable and is frivolous and an attempt to retain an unjust
advantage.
[1 O] It was submitted on behalf of Defendants that the amendment is opposed in terms
of the points raised in the heads of argument as it creates confusion and there are
procedural flaws. In their heads of argument Defendants set out the issues to be
determined as follows:
(a) Even with a Rule 28 compliance the amendment should be refused due to
prejudice, inconsistency and advance stage of proceedings?
(b) Does the misnomer in the Plaintiff's documents (Heads of Argument) render
the amendment fundamentally flawed, thereby requiring formal correction
with notice and leave?
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(c) Does omitting the Second defendant amount to an abandonment or a
procedural defect?
[11] It is further contended that the timing of the amendment is prejudicial and renders
the founding affidavit incoherent necessitating its amendment which is not permissible.
The amendment would require consequential adjustments to the answering affidavit and
Defendants would suffer prejudice having incurred costs in preparing answering papers
and attending court.
[12] When considering the notice of application for summary judgment set down for 8
July 2024 its states:
"As against the Respondent/Defendant who is jointly and severally liable to the
Applicant/Plaintiff as follows"
It is accordingly clear therefrom that it is meant to refer to more than one person or entity
otherwise the words "jointly and severally" would not have appeared in the notice of
motion. It is therefore clear that it is an error in that the "s" after Respondent and
Defendant was left out and that it has to be corrected or amended and that it would then
read correctly to give effect to the averment that they are jointly and severally liable for
payment of the amount due.
[13] A reading of the founding affidavit by one Nayeed Fakir on behalf of Plaintiff,
indicates that it refers to more than one person as in paragraph 7 it states:
"I hereby verify the Applicant's cause of action against the Respondents as set out
in the Applicant's particulars of claim."
In paragraph 8 it once again refers to "Respondents". In paragraph 9.3 it refers to
"Se cond Responden t" concluding a deed of suretyship". In paragraph 9.4 it once again
refers to "Second Respondent binding himself as surety. In paragraph 9.5 it refers to
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"First Respondent caused a covering mortgage bond to be registered". In paragraph 12
it refers to "Respondents plea" and a further reading of the paragraphs of the affidavit
refers to Respondents which makes it clear that the deponent to the affidavit was well
aware when attesting to the affidavit that it referred to more than one Respondent.
[14] The heading of Defendants plea states "First and Second Defendants plea to
Plaintiff's particulars of claim." It is accordingly clear therefrom that they were well aware
that it referred to both First and Second Defendants.
[15] As set out above it is in my view clear from a reading of the notice of motion and
the affidavit that the notice of motion contains typographical errors where it refers to
Defendant/Respondent and should have read Respondents/Defendants and that the
affidavit filed in support thereof makes it very clear that it refers to more than one individual
or entity by referring to First or Second Defendant or to Defendants. There can
accordingly be no prejudice to Defendants if the amendments are granted. The
amendments do not affect the affidavit of Plaintiff as it deals with and refers to two
Defendants. Therefore there would be no prejudice if the amendment is granted and
there would also not be any necessity for Defendants to effect changes to their answering
affidavit. However as this is an application for an amendment if Defendants are of the
view that they need to supplement their affidavit they can indeed do so.
[16] In my view the objections which have been raised against the amendments are
without substance and must accordingly be rejected. It was unnecessary to oppose the
application and Defendants should pay the costs of the application.
Accordingly the following order is made:
1. Plaintiff is granted leave to amend its notice of application for summary judgment
in accordance with its notice of intention to amend dated 7 September 2024.
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2. Plaintiff is directed to deliver its amended pages within ten (10) days of the granting
of this order.
3. First and Second Defendants jointly and severally the one paying the other to be
absolved shall pay the costs of this application including the costs of counsel on a
party and party scale (B).
PC BEZUIDENHOUT J.
JUDGMENT RESERVED ON: 9 SEPTEMBR 2025
JUDGMENT HANDED DOWN ON: 12 SEPTEMBER 2025
COUNSEL FOR APPLICANT/PLAINTIFF: J WTEMLETT
Instructed by: Tomlinson Mnguni James
Pietermaritzburg
Ref: M Browning/KP/050N0762/0000029
Tel: 033 341 9100
Email: MikeB@tmj.co.za
KarmaniP@tmj.co.za
COUNSEL FOR RESPONDENTS/DEFENDANTS: NC F CABE
Instructed by: Keegan Govender & associates
Pinetown
Ref: KG1815
Tel: 031 701 2707
Email: keeganglaw@tiscali.co.za
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