REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A25/2025
34554/2018
In the matter between:
In the matter between:
COVEC S.A. (PTY) LTD Appellant
and
AFRI-DEVO (PTY) LTD Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 17 October 2025.
Flynote: Appeal against an exercise of a discretion contemplated in Rule
28(10) of the Uniform Rules of Court. A replication is a pleading to be filed
where necessary. It is a pleading informed by a plea. It is not a pleading to be
amended because of the evidence led at a trial. Where an amendment would
lead to a prejudice or injustice , such should not be allowed by a Court.
Allowing or refusing an amendment of a pleading involves an exercise of
discretion. A Court of appeal is loath to interfere with an exercise of discretion
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _________________________
DATE SIGNATURE
2
by the Court below , unless it is demonstrated that the exercise is based on
wrong principles, mala fide or capricious. Held: (1) The appeal is dismissed
with costs to be taxed or settled at scale B.
JUDGMENT
MOSHOANA, J (MOLOPA-SETHOSA J AND LENYAI J CONCURRING)
Introduction
[1] Before us is an appeal with leave of the Supreme Court of Appeal granted on 5
February 2025. This appeal involves an attack against an exercise of a discretio n by
the erudite Madam Justice Potterill who was sitting alone . Potterill J , in a rather
lengthy and well-reasoned written judgment, dismissed an application seeking leave
to amend a replication midstride a trial. With considerable regret, the entire wheel of
the trial was spoked pending the outcome of the present appeal.
[2] Although the respondent failed to deli ver heads of argument timeously, Mr
Richards appeared before us on behalf of the respondent and sought to be permitted
to make oral submissions. The permission sought was granted.
Background facts
[3] The present appeal fulcrums on a procedural aspect of the partly heard action
proceedings, as such , it shall be obsolete to punctiliously provide a full rendition of
the factual matrix appertaining the dispute involving the parties before us. To do so
will serve no useful purpose other than to elongate this judgment in the
impermissible circumstances. The bulk of the facts appertaining the entire dispute is
usefully recorded in the written judgment of Potterill J. The salient facts relevant to
this appeal may be condensed as follows.
[4] The relationship between the appellant and the respondent i s governed by the
terms of a written agreement concluded on 17 June 2014. In terms of that written
agreement, the appellant was to supply, deliver, install and maintain the works, as
3
described in the written agreement, at an agreed price of R 16 770 118.60, which
was inclusive of Value Added Tax (VAT).
[5] At some point during the currency of the written agreement, a dispute sparked
between the parties regarding the performance of the terms of the written
agreement. Such a dispute culminated in the appellant instituting action proceedings
against the respondent , seeking certain declaratory reliefs and payment of certain
sums of money. Of pertinence to the present appeal, on 18 May 2018, the appellant
caused a combined summons to be issued against the respondent. The respondent
delivered a plea and a counterclaim against the appellant.
[6] Ultimately, in addition to a plea to the counterclaim, the appellant delivered a
replication to the respondent’s plea. Pleadings were ultimately closed, and the matter
was enrolled for trial. The trial was allocated to our sister Potterill J. Midstride the
trial, following the evidence of the appellant’s expert witness, Mr Langely, an
application for the postponement of the trial was sought by the appellant in order to
consider an amendment to its replication. The postponement was granted.
[7] In the intervening period, a document dated 6 January 2015 was unearthed by
the appellant, which document sought to suggest that the delivery period was within
the period 10 February 2015 to 6 March 2015. The contents of this unearthed
document were already testified to by one Mr Venter. On the appellant’s contention
before us, the evidence of Mr Venter was not controverted during cross-examination.
[8] On 30 January 2024, the appellant gave notice of intention to amend its
particulars of claim as well as the replication. On 7 March 2024, the respondent
delivered an objection to the intended amendment to the replication. The objection
recorded the following:
“1 The proposed amendment is aimed at introducing a new cause of action
which is impermissible in circumstances where the defendant will be prejudiced which
which is impermissible in circumstances where the defendant will be prejudiced which
cannot be cured by a tender for costs.
4
2 The amendments proposed to the plaintiff’s replication, also introduces a new
cause of action, alternatively amending the plaintiff’s current cause of action, will
render the plaintiff’s pleadings excipiable.
3 The introduction of new facts and documents at this stage of the proceedings
some six years after institutional (sic) proceeding (whist the plaintiff’s third witness is
testifying) will delay the action and it will not be in the interest of justice.
4 The proposed amendment may necessitate the plaintiff applying to recall
witnesses which will be prejudicial to the defendant in delay (sic) proceedings.
5 The proposed amendments would not increase the plaintiff’s prospects of
success in the action.
6 The proposed amendments are brought inordinately late in the proceedings
without any explanation offered.
7 The proposed amendment constitutes a knee jerk reaction to the
discrepancies in the plaintiff’s case as exposed during the evidence and cross-
examination.”
[9] The objection prompted the appellant to launch an application seeking leave of
the Court to amend the replication. The contents of the proposed amendment were
usefully set out by Potterill J in her written judgment. Yet again, it shall be obsolete to
regurgitate the contents thereof in this judgment. After hearing the application,
Potterill J delivered the impugned judgment.
The appellant’s submissions
[10] Before us, t he appellant submits that the Court below misconstrued its
particulars of claim and the proposed ame ndment to its replication. Owing to the
contended misconstruction, the Court below came to a wrong conclusion , so went
the submission . The appellant attacked a number of findings made by the Court
below. Briefly, those findings are:
10.1 bringing the replication in line with defences;
10.2 introducing a new agreed date for the delivery of the BESS contrary to what is
set out in the particulars of claim. The email sought to be introduced does not reflect
set out in the particulars of claim. The email sought to be introduced does not reflect
the date of 6 March and does not support the alleged date of 6 March;
5
10.3 contrary to the Shifren clause, the communication was not agreed to in
writing;
10.4 witnesses would need to be recalled to prove the dates mentioned in the
email communication;
10.5 the appellant should have pleaded implied waiver and it also bore the onus to
prove waiver;
10.6 undertaking not to take legal steps is not a recognised defence to avert
reciprocity;
10.7 failure to plead contractual preclusion to raise late delivery and raising of new
issues not allowed midstride the trial; and
10.8 the defendant stands to suffer prejudice not compensable by a costs order.
Respondent’s submissions
[11] As alluded to at the dawn of this judgment, Mr Richards made oral
submissions. In short, he submitted that when refusing leave to amend, the Court
below exercised a discretion, and this Court is not permitted to interfere with such an
exercise of discretion in the absence of a known legal basis to do so. Additionally, he
submitted that the amendment , if allowed, would lead to an injustice. Ultimately, he
contended that t he Court below was correct and did not materially misdirect itself
when refusing leave to amend.
Analysis
[12] For the purposes of this judgment, the pertinent rule is the one that allows
application for leave to amend at a late stage. In order to perceptively consider the
present appeal, it is apposite to consider the text of the implicated rule. Rule 28(10)
of the Uniform Rules of Court provides as follows:
“(10) The court may , notwithstanding anything to the contrary in this rule, at any
stage before judgment grant leave to amend any pleading or document on such other
terms as to costs or other matters as it deems fit.”
[13] Both counsel that appeared before us are congruent with each other that the
issue of granting and or refusal of leave to amend involves an exercise of a true or
wide discretion. When a judge opts to grant or refuse leave to amend, the judge is,
wide discretion. When a judge opts to grant or refuse leave to amend, the judge is,
by law, entitled to do so. This is similar to the granting or refusing of a postponement
6
or costs award. Either option is valid in law. In National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others ,1 the Court expressed
itself in the following terms:
“A Court of appeal is not entitled to set aside the decision of a lower court granting or
refusing a postponement in the exercise of its discretion merely because the Court of
appeal would itself, on the facts of the matter before the lower Court, have come to a
different conclusion; it may interfere only when it appears that the lower Court had not
exercised its discretion judicially , or that it had been influenced by wrong principles or
a misdirection on the facts , or that it had reached a decision which in the result could
not reasonably have been made by a court properly directing itself to all the relevant
facts and principles.”(footnote omitted)
[14] In Trencon Construction (Pty) Ltd v Industrial Development Corporation of
South Africa Ltd and Another ,2 in complete reverberation to what National Coalition
stated, the Court expressed itself in the following terms:
“[88] When a lower court exercises a discretion in the true sense, it would ordinarily
be inappropriate for an appellate court to interfere unless it is satisfied that this
discretion was not exercised -
‘judicially, or that it had been influenced by wrong principles…’3
An appellate court ought to be slow to substitute its own decision solely because it
does not agree with the permissible option chosen by the lower court.
[89] In Florence Moseneke DCJ stated:
‘Where a court is granted wide decision-making powers with a number of
options or variables, an appellate court may not interfere unless it is clear that
the choice the court has preferred is at odds with the law . If the impugned
decision lies within the range of permissible decisions, an appeal court may
not interfere only because it favours a different option within the range. This
1 2000 (2) SA 1 (CC) at para 11.
2 2015 (5) SA 245 (CC).
1 2000 (2) SA 1 (CC) at para 11.
2 2015 (5) SA 245 (CC).
3 As stated in National Coalition above n 1 at para 11.
7
principle of appellate restraint preserves judicial comity . It fosters certainty in
the application of the law and favours finality in judicial decision-making.’”
[15] On the strength of the principles enshrined above, the present appeal falls to be
dismissed without more. However , as held by the Constitutional Court in Cusa v
TaoYing Metal Industries and Others ,4 this Court is duty bound to deal with all that
was argued before it. Generally, an amendment, if granted, is aimed at ensuring a
proper ventilation of issues. Inasmuch as rule 28(10) allows an amendment to be
granted at any time before a judgment, it would not lead to a proper ventilation of
issues, if leave to amend is launched and sought to be granted six years later, as it
was the case here. Particularly in the circumstances where, as it is the case here,
the contemplated amendment was actuated by the leading of unfavourable evidence
during a trial. The general approach to be applied in amendment application s was
perfected in Moolman v Estate Moolman.5 The following was stated:
“. . . t he practical rule adopted seems to be that amendments will always be allowed
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 purpose s of justice in the same position
as they were when the pleading which it is sought to amend was filed.”
[16] This Court is unable to fault the decision of the Court below. It is not at odds
with the law. Having considered the pleadings in totality, as a Court considering an
amendment should do, it is indeed correct that new averments were made in the
proposed replication. There can be no doubt that the terms of a written agreement
can only be amended as per the Shifren clause. It is indeed correct that a defence of
waiver must be properly pleaded and proven. Undoubtedly, the amendment of a
waiver must be properly pleaded and proven. Undoubtedly, the amendment of a
replication would yield a substantial injustice or prejudice to the respondent.
[17] Procedurally, a replication follows a delivery of a plea. It is a pleading aimed at
the allegations made in a plea and not simply to join issues or plead a bare denial of
4 2009 (2) SA 204 (CC).
51927 CPD 27 at 29.
8
the allegations made in the delivered plea. Generally, a plaintiff makes a case to be
met by the defendant in the combined summons. In terms of rule 25(1), a replication
is a pleading that arise s out of necessity. On the appellant’s own submission, the
evidence relating to the email of 6 January 2015 was factored into the issues by the
supposedly uncontroverted evidence of Mr Venter. By necessary implication s, it is
obsolete for the appellant to perfect , as it were, its newly found case of waiver by
amending its pleadings. After replication, there is no other pleading to be allowed for
the respondent. Therein lies the palpable prejudice and injustice should the
amendment be allowed . The rule allowing amendments must not be used as a
musical chairs game. A party is not allowed to mould its case as the trial progresses.
On the submission of Mr Kruger for the appellant, the proposed amendment was
ignited by the evidence led by Mr Langely and Mr Venter. It is not necessitated by a
plea, as it should be the case, in line with rule 25(1).
[18] Generally, pleadings exist to outline the issues for the parties and for the Court.
It is for that reason that a party is not permitted to plead a particular case and lead
evidence on a different case. Equally, a party should not be permitted to ‘close the
gap’ as it were , when a clash occurs between the pleaded case and the evidence
led. Section 34 of the Constitution guarantees everyone a right to a fair hearing and
the resolution of a dispute by the application of the law. It is extremely prejudicial and
unjust for a party to contend with goal post shifting exercise during a trial. Such
conduct, if permitted , would not only destroy the substratum o f procedural law, but
shall be at odds with the section 34 right.
[19] Another consideration is that rule 23(1) provides that where any pleading is
vague and embarrassing or lacks averments which are necessary to sustain an
vague and embarrassing or lacks averments which are necessary to sustain an
action, the opposing party may deliver an exception thereto. On the principle
enshrined in Moolman, allowing an amendment of the replication will not put the
parties back to where they were before the replication. The issue of another agreed
term for delivery will not only be in direct contrast with the case set out in the
combined summons , but if allowed, it will force the respondent into the terrain
already passed of invoking rule 23(1). Such is prejudicial to the respondent, and no
order of costs shall compensate the respondent. It was perfectly within the rights of
9
the respondent to object to the proposed amendment. In upholding the objection, the
Court below did not err. Resultantly, the appeal falls to be dismissed with costs.
[20] For all the above reasons, I make the following order:
1. The appeal is dismissed.
2. The appellant is to pay the costs of this appeal to be taxed or settled on
scale B.
____________________________
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
____________________________
L M MOLOPA-SETHOSA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree and it is so ordered.
____________________________
M D LENYAI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree.
10
APPEARANCES:
For the Appellant: A N Kruger
Instructed by: Snyman De Jager Inc, Pretoria
For the Respondent: C Richards
Instructed by: Des Naidoo and Associates, Sandton
Date of the hearing: 07 October 2025
Date of judgment: 17 October 2025