RE PUBLIC O F SOU TH AF RICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
REPORTAB LE: Y ES /NO (1)
(2)
(3)
OF INTER EST TO THE JUDGES: Y ES /NO
RE V ISED .
...
DATE : 03 October 2025 SIG NA TU RE .....
In the matter between:
WESSEL JOHANNES CHRISTIAAN VISSER
BARBARA JACOMINA VISSER
And
RODEOLOR CC
ZHIYI CHEN
YANYUN LI
WOO MART SA (PTY) LTD
YUECHEN WANG
PAKAMA STEAK RANCH (PTY) LTD
CASE NO: 6391/2022
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
2
JUDGMENT
DU PLESSIS AJ:
Introduction:
[1] Before Court is an Application to amend, in terms whe reof the App licant applies
for leave to amend their plea in accordance with their notice of intention to amend
which was served and filed on 28 August 2024.
[2] The Respondents opposition to this application is based on two grounds. The
first ground being that the proposed amendment attempts to w ithdraw prior
admissions made by the Applicants and the second ground is based thereon that
the amendment attempts to introduce grounds of exception.
B ackground:
[3] The Plaintiffs (Respondents) instituted action against the App licants
(Defendants) wh ich include four different monetary claims based on breach of
various agreements between the parties.
3
[4] The Respondents issued the summons on 6 June 2022. On 25 August 2022 the
Applicants filed their plea w hich w as then amended on 13 February 2023 (the
First Amendment ).
[5] On 28 August 2024 the Applicants filed a further Notice of intention to amend in
terms of Ru le 28(1 )(a), w hich w as objected to by the Respondents in terms of
R ule 28(3). On 18 September 2024 the Applicants proceeded to launch the
application in terms of R ule 28( 4) that is serving before this Court.
Discussion:
[6] In their Plea the Defendants admitted that they concluded various agreements
w ith the Plaintiffs and they also adm itted breaching these agreements.
[7] The Defendants further adm itted that the parties concluded a final agreement on
20 May 2019 in w hich the repayment of the money ow ing by the Defendants is
set out.
[8] The Defendants raised the defence that they w ere not liable to repay the
Plaintiffs. The Defendants pleaded this defence by virtue of the fact that the
agreements w ere subject to the provisions of the National Credit Act, 34 of 2005
(the NCA ). How ever, in so far as the Plaintiffs w ere not registered as credit
providers w hen the agreements w ere concluded, the Defendants pleaded that
these agreements are null and void.
[9] The Plaintiffs thereafter amended their particulars of claim on 28 September
2023 in w hich an alternative claim w as introduced. The Plaintiffs claimed that if
the above mentioned defence w as upheld, the Defendants w ould be enriched.
4
On the basis of unjustified enrichment, the Defendants should then be liable to
pay the Plaintiffs.
[1 0] The Defendants then filed a Notice of Intention to Amend their plea on the 28th
of August 2024, in w hich they denied that the agreements came into existence.
This denial is based on the fact that the agreements w ere not signed on behalf
of the Plaintiffs.
[11] The problem w ith this is that the De fendants have acknow ledged entering into
these agreements w ith the Plaintiff in their Affidavit resisting summary
judgmen t.1
Principles regarding amendments:
[12] R ule 28 of the Un iform Ru les provides that the Court has a discretion to either
grant or to refuse amendments, but this discretion must be exercised in line w ith
certain principles.2
[13] In Affordable Medicines Trust and Others v Mininster of Health and Others3
The Constitutional Court summar ised these principles as follow s:
"[9]. .. [A}mendments will always be allowed unless the amendment is ma/a fide
(made in bad faith) or unless the amendment 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."
1 Ans w ering Affidavit, page 30-47, Index: Summary Judgment.
2 Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A ) at 565.
3 Affordable Med icines Trust and Others v M inister of Hea lth and Others 2006 (3) SA 247 (CC ).
5
[14] In addition to the principles as set out above, the Courts have also held that the
proposed amendment must raise a triable issue that is sufficiently important to
justify the prejudice and costs to the other parties.4
[15] The App licant therefore bears the onus to prove the follow ing four requirements:
15.1 that the amendments are made in good faith;
15.2 that it w ill not result in injustice or prejudice to the Respondent;
15.3 that any prejudice could be cured by a suitable costs order; and
15.4 that the proposed amendment raise triable issues of sufficient
importance to justify possible prejudice.
[16] It must be stated at this point that the effect of an admission is to render it
unnecessary for a plaintiff to prove the adm itted fact. 5
[17] In the event of w ithdraw al of admissions, the test to be applied is the same as
for other amendments , how ever it is far more difficult to satisfy this test. In
President Versekeringsmaatskappy Bpk v Moodley6 the Co urt held as
follow s:
"The approach is the same {as for other admissions}, but the withdrawal of an
admission is usually more difficult to achieve because (i) it involves a change of
front which requires full explanation to convince the court of the bona tides
thereof, and (ii) it is more likely to preiudice the other party. who had by the
admission been let to believe that he need not prove the relevant fact and might.
for that reason. have omitted to gather the necessary evidence. ''7
4 Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A ) at 565, citing de
V illiers JP in Krogman v V an Reenen 1926 OPD 191 at 195.
5 S15 of the C ivil Proceedings Evidence Act 25 of 1965.
Gordon v Tarnow 1947 (3) SA 525 (A ) at 531 .
AA Mutua l Insurance Association Ltd v Biddulph 1976 (1) SA 725 (A ) at 735 .
Be llairs v Hodnett 1978 ( 1) SA 1109 (A ) at 1150D .
6 President V ersekeringsmaatskappy Bpk v Mood ley 1964 (4) SA 109 (T) at 11 OH -111 A.
7 My emphas is.
6
[18] A defendant is therefore required to provide a full and honest explanation of the
circumstances surrounding the making of an adm ission and the reasons for
seeking its w ithdraw al.8
[19] In this instance the Applicants' only explanation for w anting to w ithdraw the
admissions is that they only realised that the Contracts w ere unsigned w hen they
prepared the Affidavit resisting summary judgment. According to the App licants
this fact means that no agreements came into existence.
[20] The Applicants did not file a replying affidavit to the Respondents answ ering
affidavit. The Respondents averments that the attempt to w ithdraw the
admissions lack bona tides has therefore not been disputed by the Applicant.9
[21] The Appellate D ivision emphas ised in Bellairs v Hodnett10 that the w ithdraw al
of adm issions requires "a satisfactory explanation of the circumstances in which
the admission was made and the reasons for now seeking to withdraw it." If the
Applicant do not provide a satisfactory explanation, it is the end of the matter.11
[22] The App licants' only explanation for w ithdraw ing the adm ission is that: "during
the cause (sic) of the litigation process, we noticed that the alleged agreements,
attached to the particulars, were not signed by all the relevant parties."12
[23] The Applicants further explained that: "Considering the aforementioned it
became glaringly evident that our previous admission was an incorrectly
admitted legal consequence and had to be retracted."13
8 Be llairs v Hodnet and Another 1978 (1) SA 1109 (A ) at 1150; (Bellairs) Northern Mounted R ifles v
O 'Ca llaghan 1909 TS 17 4; Frenkel, W ise & Co Ltd v Cuthbert 1946 CPD 735.
9 P lascon-Evans Pa ints Ltd v V an R iebeeck Pa ints (Pty) Ltd 1984 (3) SA 623 (A ) at 634.
10 Bellairs v Hodnet and Another 1978 (1) SA 1109 (A ) at 1150F - H ;
11 Frenkel, W ise and Co Ltd v Cuthbert; Cuthbert v Frenkel, W ise and Co Ltd 1946 CPD 735 at 749: "The
enquiry into w hether or not the application to amend is bona fide - in other w ords, w hether a satisfactory
explanation has been given - is the first enquiry and, if it is found that the applicant for the amendment
does not clear this hurdle, there is no need to consider the second leg of prejudice."
12 Founding Affidavit, Par 20, page 7.
13 Founding Affidavit, Par 21 , page 7
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[24] It is not enough for an applicant merely to assert an adm ission w as made in
error. The error must be fully explained to the court in order to satisfy it that the
attempted w ithdraw al of the admission w as made in good faith, and not w ith the
intent to simply secure a tactical advantage.14
[25] The Applicants seek to w ithdraw admissions that relate to factual and not legal
issues. The Applicants should have been able to identify and correct these
admissions w hen perusing their plea during or after having a consultation w ith
their attorneys.
[26] The App licants adm itted to the negotiations between the parties and entering
into the different agreements w ith the Respondents (Plaintiffs) in the Defendants'
Plea.
[27] Only once they prepared their affidavit resisting summary judgment did they
realise that some of the contracts w ere not signed. The Applicants adm it that
this is the only reason w hy they w ish to w ithdraw their adm ission . The App licants
are of the view that the fact that the contracts are unsigned by the Respondents,
mean that the agreements did not come into existence.
[28] This is contradicted how ever by the Applicants explaining in their affidavit
resisting summary judgment how the terms of the agreements w ere negotiated
and entered into.
[29] In the context of this matter the Applicants failed to give a reasonable explanation
for the w ithdraw al of the admissions. The Applicants are not merely average
laypersons but business ow ners w ith experience in entering into agreements. It
is therefore inconcievable that they did not have the capacity to consider and
14 Trans-Drakensberg Bank Ltd (under Judicial Management ) v. Com bined Engineering (Pty) Ltd and
Another 1967 (3) SA 632 (D ) at 640 and the cases cited therein.
8
comprehend the plea and the admission made therein, especially in the light that
they related to factual allegations.
[30] In their opposition to the application for amendment , the Respondents raised the
issue of prejudice. Although the relevant authorities indicates that in the absence
of a satisfactory explanation the Court does not need to consider prejudice, it is
apposite to consider it briefly for the sake of completeness.
[31] The Respondents raised the issue of prejudice in their Answ ering Affidavit and
stated that should the application for amendment be granted, they w ould have
to lead evidence w hich w as previously unnecessary and to secure the
attendance of the relevant w itnesses resulting in additional legal costs.
[32] It must also be stated that, during the trial stage, if evidence is led or provided
by the Applicants that clearly contradicts adm issions made by them in their plea,
their legal representatives may apply to the Court at that point for an amendment
based on the evidence. The Court w ill then reconsider such an application at that
time .
[33] At present, no evidence in support of the w ithdraw al of the adm issions w ere
provided by the Applicants.
Introducing exceptions:
[34] A further objection against the proposed amendments w ere that it constitutes in
impermissable attempt to introduce exceptions.
9
[35] The Applicants did seek to introduce exceptions and technical objections to the
particulars of claim, stating that the Respondents' claim lacked sufficient
averments to sustain a cause of action.15
[36] If the Applicants wished to raise these objections, they w ere required to file an
exception, application to strike out or a notice of an irregular step before filing
their plea16.
[37] In the matter of Beinash v Wixley the Court held that: "It can be said in general
terms ... that an abuse of process takes place where the procedures permitted by
the Rules of the Court to facilitate the pursuit of truth are used for a purpose
extraneous to that objective .. .',..7_
[38] Therefore the Applicants cannot use the amendment procedure to introduce
exceptions and objections.
[39] As a result of all the facts set out above the application for amendment cannot
be succeed.
Order:
[40] In the result the following order is m ade:
1. The application for leave to amend in terms of Rule 28(4) is dismissed;
2. The Applicants are ordered to pay the costs of this application, such
costs to include cost of counsel on party and party scale B.
15 Notice of Intention to Amend delivered 28 August 2024.
16 Un iform Ru les 23, 30, 30A.
17 Beinash v W ixley 1997 (3) SA 721 (SCA ) at 734.
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
FOR THE RESPONDENT
INSTRUCTED BY
DATE OF HEARING
DATE OF JUDGMENT
10
S DU PLESSIS
ACTING JUDGE OF THE HIGH COURT ,
LIMPOPO DIVISION, POLOKWANE
Adv. JH Lerm
Hen stock van den Heever Attorneys
johan@hvdh .co.za
Adv. JG Botha
Yammin Hammond Inc
reena@yhp .co.za
28 March 2025
03 October 2025