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M AND G INVESTMENTS UNIT TRUSTS SOUTH
AFRICA (RF) LTD
Fourth Respondent
JUDGMENT
INTRODUCTION
1. This is an application for leave to amend particulars of claim. It is
opposed by the first and second respondents. I will refer to the first
and second respondents in this judgment as the respondents.
2. The applicants are the trustees of a family trust. They sue in that
capacity and on behalf of the trust. The second respondent is alleged
to have been an employee of the first respondent and to have acted,
at all material times, in the course and scope of his employment with
the first respondent.
3. The applicants seek to withdraw the claims against the fourth
defendant and, further, to delete the particulars of claim in their entirety
and replace them with a new particulars of claim.
4. The amended particulars of claim would advance three claims against
the respondents (and the remaining defendant), with the following
common features:
4.1. They are damages claims, based on delict, where the duty
of care owed by the relevant defendant to the trust is said
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to arise from the General Code of Conduct for Authorised
Financial Services Providers and Representatives ("the
FAIS Code”).
1
4.2. The conclusion of an oral agreement between the first
respondent and the trust in December 2010 in terms of
which the trust appointed the first respondent to provide it
with advice, financial services and intermediary services as
defined in section 1 of the Financial Advisory and
Intermediary Services Act 37 of 2002 (‘the FAIS Act’).
4.3. During 2011, and on the advice of the first and second
respondents, the trust placed certain investments with the
third respondent.
4.4. The first and second respondents failed to comply with their
duties in terms of the FAIS Code and were wrongful and
negligent by failing to render financial services honestly,
fairly, with due skill, care, and diligence and in the interests
of the trust.
5. Where the three claims differ is, in summary, as follows:
5.1. Claim A would allege that in June 2012 the first or second
respondents, without the necessary authorisation of the
1 The FAIS Code was promulgated in terms of section 15 of the FAIS Act and, in terms of section
15(2) of that Act, became binding on all authorised financial services providers and
representatives upon publication.
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trust, caused a portion of the sum invested with the third
respondent to be disinvested and reinvested in another
investment, incurring fees in the sum of R541,500. Th is
latter amount is claimed as the trust’s loss and is claimed
from the first to third respondents jointly and severally.
5.2. Claim B alleges a disinvestment by the trust in 2015 of a
portion of the investment with the third respondent, and the
reinvestment of those funds elsewhere, on the advice of the
first and second respondents. The advice given is alleged
to have not been in good faith, and it is alleged that the trust
was not given full and appropriate information regarding the
disinvestment and reinvestment, further details of which are
set out in the proposed amendment. This conduct is alleged
to have been negligent and wrongful and to have caused
the trust a loss in the amount of R2 347 172. This amount
is described as the damages suffered by the trust as ‘the
replacement products did not yield the same returns as the
… investments would have earned had they not been
disinvested.’ It is claimed from the first and second
respondents jointly and severally.
5.3. Claim C alleges that the investment made by the trust in
2011 with the third respondent on the first and second
respondent’s advice, was itself a disinvestment and
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reinvestment. The advice given is alleged to have not been
in good faith, and it is alleged that the trust was not given
full and appropriate information regarding the disinvestment
and reinvestment, further details of which are set out in the
proposed amendment. This conduct is alleged to have been
negligent and wrongful and to have caused the trust a loss
in the amount of R6 554 190, a portion of which is
constituted by the fees occasioned by the disinvestment
and reinvestment, and the remainder of which is described
as the ‘… amount the trust would have earned from the …
investments had these investments not been terminated.’
The amount of R6 554 190 is claimed from the first and
second respondents jointly and severally.
6. The respondents raised nine objections to the proposed amendment ,
which can be conveniently dealt with in four groups.
6.1. The first, third and sixth objections were directed at claims
A, B and C respectively. These complaints contend that as
pleaded, an oral agreement governs the relationship
between the applicant and the first respondent , and a
delictual claim is hence not competent. It is contended that
the amendment, if effected, would render the particulars of
claim vague and embarrassing or result in the particulars of
claim failing to disclose a cause of action.
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6.2. The second, fourth and seventh objections contend that the
amendment seeks to introduce prescribed claims. It is
argued by the respondents that the cause of action
articulated in claim A arose on 4 June 2012, in claim B on
25 June 2015 and in claim C during 2011, and hence these
claims had prescribed prior to the service on the
respondents of the notice of intention to amend.
6.3. The fifth and eighth objections are to the quantification of
the damages in claims B and C.
2 The respondents contend
that insufficient facts have been pleaded to enable them to
reasonably assess the quantum of the claims. In particular,
it is contended that there is no indication as to how the
amounts are calculated, nor are there any allegations
regarding the period over which the damages are
calculated or the amounts the investments realised
following reinvestment, or could have realised but for
reinvestment. It is contended that for these reasons the
particulars of claim if amended would be vague and
embarrassing and would not comply with Rule 18(10).
6.4. A ninth objection was that the respondents have been
prejudiced by alleged delays by the applicants in the
bringing of this amendment.
2 No complaint is taken to that portion of the damages in claim C which relates to fees.
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7. The applicants contended that the respondents’ answering affidavit did
not admit, deny or confess and avoid the allegations in the founding
affidavit in the application for amendment and that, therefore, I should
accept the allegations in the founding affidavit as correct. As appears
from what follows, I do not consider the correctness or otherwise of the
allegations in the application for amendment to be material to the
issues I am called upon to decide. I therefore do not need to, and do
not decide on, the correctness of the aforementioned argument.
THE APPROACH TO AMENDMENTS
8. The court exercises a discretion in regard to amendments and, in
considering whether to grant or refuse an amendment , will lean in
favour of granting it if doing so will allow the real issue between the
parties to be decided.
3
9. But, an amendment must raise a triable issue – it must be of sufficient
importance to justify any procedural disadvantages caused by the
amendment proceedings, in the sense that the issue is viable and
relevant or will probably be covered by the available evidence.
4
10. The applicants placed reliance on Affordable Medicines Trust and
Others v Minister of Health and Others 5 in which the Constitutiona l
Court held that amendments will always be allowed unless mala fide
3 Trans-Drakensberg Bank Ltd (under judicial management) v Combined Engineering (Pty)
Ltd 1967 (3) SA 632 (N) at 638
4 Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 (2) SA 447 (SCA) 462–463
5 2 006 (3) SA 247 (CC)
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or unless the amendment would cause an injustice to the other side
which cannot be cured by an appropriate order for costs. 6 The
introduction of excipiability into a pleading would constitute prejudice
justifying the refusal of an amendment.7
THE OBJECTIONS TO THE DELICTUAL CLAIMS
11. The respondents contend that the manner in which the proposed
amended cause of action is pleaded demonstrates that the delictual
claim is derived from the failure to adhere to a duty of care that is owed
by reason of a contractual relationship, and that therefore the
applicants are precluded from claiming in delict. The proposed
amendment pleads, so it is argued, that the FAIS Code and the duties
it entails have been incorporated as contract terms.
12. This is because in respect of claims A, B and C, it is proposed to be
pleaded by the applicants that it was a material term of the agreement
between the parties that the first respondent would render the services
for which it was appointed in compliance with the FAIS Act and any
code of conduct applicable to persons in its position.
13. The applicants, on th e other hand, contend that the legislative scheme,
and in particular article 3(1)(d) of the Code, requires the conclusion of
a contract between clients and financial services providers and, once
6 At para 9
7 De Klerk & Another v Du Plessis & Others 1995 (2) SA 40 (T) at 43I-44B and Krischke v Road
Accident Fund 2004 (4) SA 358 (W) at para 9
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such a contract is concluded, it imposes on financial advisors the
duties contained in the FAIS Code. Those duties, so it was argued, are
extra-contractual. The contract brings about the relationship between
client and financial advisor, and the FAIS Act imposes on the advisor
in such a relationship the duties contained in the FAIS Code.
14. The pleading is capable of the reading which the applicants contend
for:
14.1. The pleading, read as a whole, makes plain that the claim
advanced is intended to be one in delict and that the duties
imposed by the Code are contended to arise extra-
contractually. That is evidenced by the proposed paragraph
11 which states that the claims are for damages based on
delict against the defendants who owe a duty of care in
favour of the trust in terms of the FAIS Code.
14.2. The portion of the pleading which would state that it was a
term of the agreement between the parties that the services
would be rendered in terms of the FAIS Code does not
necessarily mean, as the respondents contended, that the
terms of the Code became terms of the contract. It is
capable of being interpreted as alleging that the first
respondent would conduct itself reasonably, where
reasonableness is to be measured with reference to the
FAIS Code.
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15. That the pleading is capable of being read in this way does not,
however, address the respondents’ contention that the conclusion of
the contract precludes a reliance on a delictual claim.
16. The existence of a contractual relationship between the applicants and
the respondents does not, without more, preclude a claim in delict. 8
Unterhalter J, as he then was, in Trio Engineering Products Inc v Pilot
Crushtec International (Pty) Ltd 9 held that it is untenable to adopt so
strict a position that a contractual relationship displaces every duty of
care in delict. It was held that there is no warrant to move from the
unattractive proposition that every contractual duty attracts a co-
extensive duty in delict (merging contract and delict), to the position
that the assumption of a contractual duty is repugnant to the
recognition of any delictual duty.
10 Duties may arise by reason of
statute or at common law that compliment or are not repugnant to
contractual obligations and hence may be concurrent.
11 The applicants
contended for this latter situation.
17. In Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd12 Brand
JA held, with reference to the decision in Lillicrap, that the existence
of a contractual relationship enables parties to regulate that
relationship themselves, including provisions as to their respective
8 Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at
496G-I
9 2019 (3) SA 580 (GJ)
10 At para 27
11 Ibid
12 2006 (3) SA 138 (SCA)
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remedies. There is thus no policy imperative for the law to
superimpose a further remedy in delict. 13 The court went on to hold
that in cases of pure economic loss there was no need to extend
aquilian liability so as to recognise a duty not previously recognised in
law where the parties were capable of regulating such duties
contractually.
14
18. To quote from Lillicrap: 15
‘… the Aquilian action does not fit comfortably in a contractual setting like the
present. When parties enter into such a contract, they normally regulate
those features which they consider important for the purpose of the
relationship which they are creating. This does not of course mean that the
law may not impose additional obligations by way of naturalia arising by
implication of law, or, as I have indicated above, those arising ex delicto
independently of the contract. However, in general, contracting parties
contemplate that their contract should lay down the ambit of their reciprocal
rights and obligations. To that end they would define, expressly or tacitly, the
nature and quality of the performance required from each party. If the
Aquilian action we re generally available for defective performance of
contractual obligations, a party's performance would presumably have to be
tested not only against the definition of his duties in the contract, but also by
applying the standard of the bonus paterfamilias. How is the latter standard
to be determined? Could it conceivably be higher or lower than the
contractual one? If the standard imposed by law differed in theory from the
13 At para 18
14 At para 21 - 24
15 Supra at 500F-501H
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contractual one, the result must surely be that the parties agreed to be bound
by a particular standard of care and thereby excluded any standard other
than the contractual one. If, on the other hand, it were to be argued that the
bonus paterfamilias would always comply with the standards laid down by a
contract to which he is a party, one would in effect be saying that the law of
delict can be invoked to reinforce the law of contract. I can think of no policy
consideration to justify such a conclusion….
Apart from defining the parties' respective duties (including the standard of
performance required) a contract may regulate other aspects of the
relationship between the parties. Thus, for instance, it may limit or extend
liability, impose penalties or gra nt indemnities, provide special methods of
settling disputes (eg by arbitration) etc. A Court should therefore in my view
be loath to extend the law of delict into this area and thereby eliminate
provisions which the parties considered necessary or desirable for their own
protection. The possible counter to this argument, viz that the parties are in
general entitled to couch their contract in such terms that delictual liability is
also excluded or qualified, does not in my view carry conviction. Contracts
are for the most part concluded by businessmen. Why should the law of delict
introduce an unwanted liability which, unless excluded, could provide a trap
for the unwary?’
19. I must thus decide, as I understand these authorities, whether the
proposed amendment seeks to claim for a loss that occurred pursuant
to or in the performance of the contract concluded between the
applicants (as trustees) and the first respondent. If it does, the remedy
would be a claim in contract for contractual damages. If, on the other
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hand, the proposed claim is one which arises between parties to a
contract, but independently from the contract as a result of additional
or complementary duties, the remedy would be a delictual claim.16
20. The amendment provides for the conclusion of an oral agreement in
terms of which the trust appointed the first respondent to provide it with
advice, financial services and intermediary services as defined in
section 1 of the FAIS Act.
21. Claims B and C seek to allege a disinvestment and reinvestment by
the trust on the advice of the first and second respondents. The advice
was provided because of the contractual relationship between the
parties and in terms of that contractual relationship. The contract had
as a term the provision of advice by the first and second respondents
to the trust, and the disinvestment and reinvestment was carried out
pursuant to advice given by the respondents. This is the type of
situation contemplated by Lillicrap where contractual remedies must
be pursued and a delictual claim would not be permissi ble. In this
situation the FAIS Code obligations are not complimentary to the
contractual obligations, but rather give content to the contractual
obligations as contractual terms.
22. Claim A relates to an unauthorised withdrawal from one investment
and reinvestment into another investment, causing an alleged loss.
16 See, in this regard, the analysis of Moorcroft AJ in Devland Cash and Carry (Pty) Ltd v G4S
Cash Solutions SA (Pty) Ltd [2023] ZAGPJHC 754 at para 20 – 25.
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That disinvestment and reinvestment was not caused by advice and
the claim is in this respect distinguishable from claims B and C.
Nevertheless, th e proposed claim alleges conduct contrary to the
mandate in the form of an unauthorised or unmandated withdraw al.
This claim is therefore also founded on a contractual, and not a
delictual, breach.
23. The applicants do not contend that the respondents would have owed
the trust the duties in the FAIS Code absent a contract between
them.
17
24. It follows from the aforesaid that the respondents’ first, third and sixth
objections are upheld. The proposed amendments would bring about
vagueness and embarrassment in that they would impermissibly claim
in delict that which the pleading indicates ought to be contractual
damages.
25. I do not, in reaching this finding, make any decision on the competence
of that portion of claim A which seeks to claim damages from the third
respondent.
THE PRESCRIPTION OBJECTIONS
26. If the proposed claims have prescribed, the amendments ought to be
refused.18 But this is where it is clear, or common cause, that the claim
17 Nashua Mobile (Pty) Ltd v GC Pale CC t/a Invasive Plant Solutions 2012 (1) SA 615 (GSJ) at
para 24 - 28
18 Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit 2000
(2) SA 789 (SCA) at 796H-I
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as proposed to be amended has prescribed. To quote Flemming DJP
in Stroud v Steel Engineering Co Ltd and Another,19 ‘once prescription
is not common cause, the plaintiff should not be deprived of his chance
to put his claim before the Court because of apparent probabilities at
the time when amendment is considered.’
27. The respondents accept that the applicants do not make any
averments in the proposed amendments as to when they gained
knowledge of the debt. Certain inferences are drawn by the them,
however. They contend that:
27.1. The applicants’ proposed amendment in respect of Claim A
was for a debt that arose on 4 June 2012. The applicants
‘should’ have had knowledge of the payment of fees to the
first respondent on that date. Accordingly, claim A became
prescribed by latest June 2015.
27.2. The applicants’ proposed amendment in respect of Claim B
was for a debt that arose on 25 June 2015. The applicants
‘should’ reasonably have had knowledge of the claim when
the disinvestment was made on the applicants’ instructions
and accordingly, claim B became prescribed by latest June
2018.
27.3. The applicant’s proposed amendment in respect of Claim C
19 1996 (4) SA 1139 (WLD) at 1142C-F
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was for a debt that arose latest December 2011. The
applicants ‘should’ reasonably have had knowledge of the
claim when the disinvestment was made on the applicants’
instructions. Accordingly, Claim C became prescribed by
latest December 2014.
28. It was further contended that the application for amendment contained
contradictory averments as to the date on which the applicants gained
knowledge of the debt. The founding affidavit is argued to have put the
date at 2022 while the replying affidavit puts the date at a time ‘ after
the summons was served.’
29. The criticism of the affidavits, even if correct, does not provide a basis
for upholding the objections based on prescription:
29.1. There was no obligation on the applicants to anticipate
prescription. As the Stroud judgment referred to above
indicates, prescription is not an issue until it has been
pleaded.
20 The applicants therefore did not have to make
any averments in the proposed amendment as to when they
became aware of the debt and therefore would also not
have needed to do so in the application for leave to amend.
29.2. Nor do the allegedly contradictory averments assist in
determining when the applicants acquired the necessary
20 At 1142D-F
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knowledge for prescription to have commenced running.
29.3. The affidavit is deposed to by the trust’s attorney and not
the trust, and it is the knowledge of the trust which is
relevant to prescription.
29.4. Finally, what is stated in the affidavits is the attorney’s
opinion as to when prescription began to run. His opinion
cannot impact on when prescription actually began to run.
30. The use of ‘should’ by the respondents in contending for prescription
is demonstrative of the fact that the commencement of prescription is
not common cause and is something which is best pleaded and
canvassed at trial.
31. In Le Roux and Another v Johannes G Coetzee & Seuns and Another
21
the Constitutional Court held that at the time that incorrect advice is
given, or a mandate is purportedly discharged, a client would generally
not know that the advice was incorrect or that the mandate was not
properly discharged. Either may have occurred as a matter of fact, yet
the knowledge and appreciation that the advice was incorrect or that
the mandate was not properly discharged may only emerge much
later. Similarly, with respect to claim A, if the impugned transaction
was unauthorised, the trust may well not have been aware of it at the
time that it occurred.
21 2024 (4) SA 1 (CC) at para 64 and 65
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32. It is thus not appropriate for me, at amendment stage, to assume facts ,
nor are amendment applications intended to determine factual
issues.22
33. The second, fourth and seventh objections are thus dismissed.
THE QUANTIFICATION OF DAMAGES
34. The respondents contend that Claims B and C contain no more than
a bald averment as to the quantum of the alleged loss and that i t is
impossible for them to reasonably assess the quantum of the
applicants’ alleged damages.
35. It is argued that it was incumbent on the applicants to have pleaded at
least the following information:
35.1. The period over which the so-called loss or damages were
calculated;
35.2. what the yield was or would have been had the funds not
been disinvested; and
35.3. the return which was obtained in respect of the replacement
products.
36. Because this detail is lacking, the respondents contend that the
proposed amended Claims B and C do not comply with Rule 18(10)
22 Ergo Mining (Pty) Ltd v Ekurhuleni Municipality and Others [2020] 3 All SA 445 (GJ) at para
16
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and are vague and embarrassing.
37. Rule 18(10) is applicable to all claims for damages. It is therefore
necessary that the pleading enable the counterparty to reasonably
assess the quantum of damage claimed. The extent of the detail
required in the pleading will depend upon the complexity of the
damages claim.
38. It has been held that where a loss is predicated on a counterfactual
(as this proposed amendment is) , the pl eading must set out the
essential facts and assumptions relied upon that support the quantum
of the loss claimed.
23
39. It was submitted by the applicants that the court ought to take into
account in determining this objection the relationship between the
parties, the duties owed by the respondents to the trust and the
profession of the respondents. I am not aware of any authority which
permits of a departure from the requirements of Rule 18(10) because
of factors such as these, and I was not referred to any such authority.
40. Claim B, as indicated already, is premised on a disinvestment and
reinvestment by the trust, on advice given, in June 2015. The trust
alleges that it would not have disinvested and reinvested but for the
advice given to it. It is then to be pleaded as follows:
‘3.14.2 the Trust suffered damages in the amount of R 9,193,994.78.
23 Khourie v Levine and Others [2018] ZAGPJHC 418 at para 16
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The calculation for same is set out under annexure "PC6".
3.15 The Trust suffered damages because the replacement products
did not yield the same high returns as the Prudential investments
would have earned had they not been disinvested.’
41. PC6 is described as the ‘Calculation of Loss suffered by the … trust’.
The heading to the calculation that follows is ‘But tor calculation had
the R 40,000,000 remained in Prudential until 9 July 2020’.
42. PC6 then proceeds to set out the products the funds were invested in,
the initial contributions in each product as at 25 June 2015 (the
disinvestment date), the returns on such investments for a period up
to 9 July 2020 (this is presumably a notional return) and the fees that
would have been incurred over the period. A closing value is given as
at 9 July 2020.
43. A summary is then set out as to the movement on the reinvestment
and its closing balance as at 9 July 2020 is provided. The actual return
is then subtracted from the notional return to yield the damages
amount claimed.
44. What I have set out is merely a summary of that which appears in PC6.
It spans 11 pages and contains far more detail than that which I have
described above, including the rates of returns which have been used
for the various funds, the source from which those rates were obtained,
the time periods they are said to be applicable for and monthly detail
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of the account movements.
45. It is clear from the pleading that the amount claimed is the difference
between what the original investment would have realised had it
remained in place, and what was realised after disinvestment and
reinvestment. PC6, which must be read with the pleading, contains
the detail which the respondents contend needs to be alleged: it puts
the period as being from 25 June 2015 – 9 July 2020 and gives the
values of the two competing investments at the end date of 9 July
2020.
46. I am satisfied that the particularity contemplated by Rule 18(10) is
contained in the pleading as read with PC6 and the fifth objection thus
falls to be rejected.
47. Claim C arises from a disinvestment and reinvestment, on advice, in
August 2011. The amounts disinvested are specified. It is alleged that
the trust would not have disinvested and reinvested but for the advice
given to it. Proposed paragraph 4.14.2 of the amendment would read
as follows:
‘the Trust suffered damages in the amount of R 9 500 000, 00, being
the amount the Trust would have earned from the terminated products
with effect from the date on which each of the terminated products
were terminated to 31 July 2023 had the terminated products not been
terminated and the relevant amounts remained invested with Old
Mutual Life Assurance Company (South Africa) Limited’.
Page 22 of 27
48. I agree with the respondents that it is at least necessary for the
pleading to describe the period over which the so-called loss or
damages were calculated. Indeed the applicants’ counsel conceded
as much. Without an end date for the calculation there cannot be a
computation of the alleged loss of profit. The start date is given as the
date of disinvestment and the end date is given in the pleading as 31
July 2023. This aspect is therefore addressed by the pleading.
49. Once one knows the period over which the loss has been calculated,
and that the loss is calculated as the difference between what was
realised and what could have been realised but for the disinvestment
and reinvestment, the further particularity which the respondents seek,
namely the amount of the notional return and the amount of the actual
return, is facta prabantia rather than facta prabanda.
50. The respondents can assess the quantum of the claim on the
information provided. The eighth complaint thus falls to be dismissed.
THE DELAY COMPLAINT
51. The ninth objection was not pressed in argument before me, as a self-
standing basis upon which to refuse the amendments sought. Rather
it was raised, as I understood it, as a factor to be taken into account,
together with the other objections raised, and as relevant to costs.
52. This is in keeping with the approach that an amendment will be granted
(even at a late stage) if it leads to a proper ventilation of the dispute
Page 23 of 27
and if it does not occasion an injustice to the opposing party which
cannot be remedied by an appropriate costs order.24 Delay on its own
is not a basis for refusing an amendment.25
CONCLUSION
53. The respondents had excepted to the applicants’ unamended
particulars of claim. They contend that the proposed amendment in
issue is an attempt to overcome the fact that the initial particulars of
claim were excipiable, and by seeking this amendment they impliedly
concede that the exception was validly raised.
54. I was thus urged by the respondents to decide that exception. It was
argued that, at the very least, the respondents are entitled to the costs
of that exception. It was common cause, however, that the exception
had not been set down for hearing by either party.
55. The applicants’ counsel submitted that the applicants were not ready
to address the exception and would be prejudiced were I to entertain
the exception. Given that it had not been set down, the applicants
were not required to be prepared to deal with the exception.
56. I indicated to the parties during the course of argument that I would
not decide the exception and that I would provide my reasons for
declining to do so in this judgment.
24 Kasper v Andrè Kemp Boerdery CC 2012 (3) SA 20 (WCC) at para 70
25 Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (TkGD) at 77A-C
Page 24 of 27
57. As the exception had not been set down for hearing, as it could have
been, it would be prejudicial to the applicants’ rights to hear argument
on it. Were the amendments to be refused (as in the result they will
be), the exception would become a matter for the parties to address in
the manner they each deem fit. Were the amendments allowed, it
would remain available to the respondents to set down the exception
for the purposes of having costs determined, if agreement cannot be
reached between the parties on the costs of that exception.
58. I was also not prepared to assume that the exception was validly taken
merely because an amendment is being sought.
59. I was asked by the applicants, should some objections succeed and
others fail, to grant that part of the p roposed amendments to which
there is no valid objection. Given that I have upheld the first, third and
sixth objections, and that these objections go to the very basis on
which all three claims are formulated, I cannot accede to this request.
The applicants will have to consider how best to advance their claims
in the light of the conclusions I have reached.
60. There was no objection to the withdrawal of the claims against the
fourth defendant, but that is also not an amendment I can allow as it
was given effect to by way of deleting the particulars of claim in their
entirety and replacing them with particulars which did not articulate a
claim against the fourth defendant. The proposed amendment further
records that ‘a notice of withdrawal of claims against the fourth
Page 25 of 27
defendant will be served in due course.’ Thus, if the applicants wish to
pursue that withdrawal (to the extent that they have not already done
so), it can be achieved by service of a notice of withdrawal.
61. As the applicants sought leave to amend, and as the respondents have
been successful in three of the objections taken, and as the objections
were not unreasonably taken, it is appropriate that the applicants pay
the costs of this application.
62. The respondents sought costs on scale C while the applicants
contended that scale B would be the appropriate scale. Wilson J in
Mashavha v Enaex Africa (Pty) Ltd
26 held that s cale A is the default
costs scale which ought to be departed from only where a case is
unusually complex, important or valuable. The judgment also indicates
that value and importance must be judged objectively and with
reference to evidence.
27 No such evidence was put before me.
63. The m atter did involve some complexity. The heads were not,
however, particularly lengthy nor was oral argument. Given the nature
of the issues, costs on scale B is appropriate in the circumstances.
64. In the result, I make the following order:
64.1. The respondents’ second, fourth, fifth, seventh, eighth and
ninth grounds of objection to the applicants’ proposed
26 2025 (1) SA 466 (GJ) at para 16
27 At para 20
Page 26 of 27
amendments contained in the notice o f objection dated 30
July 2024 are dismissed;
64.2. The respondents’ first, third and sixth grounds of objection
to the applicants’ proposed amendments contained in the
notice of objection dated 30 July 2024 are upheld;
64.3. The applicants’ application for leave to amend their
particulars of claim is dismissed; and
64.4. The applicants are to pay the costs of this application on
scale B, inclusive of the costs of two counsel where so
employed.
_____ _______________
K D ILES
Acting Judge of the High Court, Johannesburg
Appearances:
On behalf of the applicants: K Tsatsawane SC
Y Saloojee
Instructed by: Webber Wentzel Attorneys
On behalf of the 1
st and 2nd respondents: P Van der Berg SC
A Roestorf
Instructed by: Thyne Jacobs Inc
Date of hearing: 20 August 2025
Page 27 of 27
Date of judgment: 7 September 2025