IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 2014/2023
In the matter between
FREE STATE WHEELS (PTY) LTD PLAINTIFF
and
WRC RENTALS (PTY) LTD FIRST DEFENDANT
MARNUS NICO COETZEE SECOND DEFENDANT
DANIËL BENJAMIN GROBLER THIRD DEFENDANT
AXE HOLDING (PTY) LTD FOURTH DEFENDANT
WRC 2020 INVESTMENTS (PTY) LTD FIFTH DEFENDANT
LAYSAN LIMITED SIXTH DEFENDANT
Neutral Citation: Free State Wheels (Pty) Ltd v WRC Rentals (Pty) Ltd and Others
(2014/2023) [2023] ZAFSHC 378 (26 November 2025)
Coram: VAN RHYN J
Heard: 28 August 2025
Delivered: 26 November 2025
Summary: Application for leave to amend particulars of claim. Objection to proposed
amendments – on basis that amendments w ere delayed, will have the effect of
withdrawing admissions previously made and renders the particulars of claim vague
and embarrassing alternatively lacking the necessary averments to sustain a cause
of action. Provisions of rule 18 of the Uniform Rules of Court that every pleading shall
have a clear and concise statement of material facts – with sufficient particularity to
2
enable the opposite party to reply thereto – applicable. Proposed amendment will not
contribute to the clarification of the real issues between the parties being the amount
claimed and calculation of interest – will not contribute towards the adjudication of the
genuine dispute between the parties.
3
____________________________________________________________________
ORDER
1 The application to amend its particulars of claim in accordance with Annexure
X to its notice of intention to amend is dismissed with costs, which costs shall include
costs of two counsel (where so employed) on Scale B.
2 The plaintiff shall pay the wasted costs in respect of the second and third
notices of intention to amend, respectively dated 22 August 2024 and 4 March 2024.
JUDGMENT
Van Rhyn J
[1] This is an interlocutory application by the plaintiff to amend its particulars of
claim in accordance with annexure X appended to its notice of intention to amend
dated 22 April 2025 and for an order that the defendants, jointly and severally, the
one to pay the other to be absolved pay the costs of the application, if opposed.
This application follows upon an objection filed on 8 May 2025 by the defendants
against such contemplated amendments.
[2] On 24 April 2023 the plaintiff , Free State Wheels (Pty) Ltd, instituted action
against the defendants which became defended. On 8 June 2023 the plai ntiff served
and filed its first notice of intention to amend its particulars of claim (the first notice).
The defendants objected to the first notice on various grounds. An application for
leave to amend followed whereupon Van Zyl J granted the plaintiff leave to amend its
particulars of claim on 14 March 2024. The plaintiff was ordered to pay the costs of
the application. The amendment was effected by the plaintiff on 29 April 2024.
[3] The defendants served and filed their plea together with a first claim in
reconvention, an alternative claim in reconvention and a second claim in
reconvention whereafter the plaintiff, on 22 August 2024, filed its replication and plea
4
to the claims in reconvention. Thereafter, the plaintiff delivered a second notice of
intention to amend its particulars of claim (the second notice) , to which the
defendants objected; the plaintiff did not bring an application for leave to amend. On
4 March 2025, almost seven months later, the plaintiff served and filed its third notice
of intention to amend (the third notice). The defendants objected to the third notice
on 18 March 2025.
[4] Again, the plaintiff did not launch an application for leave to amend within the
prescribed period. On 22 April 2025, the plaintiff served a fourth notice of intention to
amend (the fourth notice) to which the defendants objected on 6 June 2025. The
fourth notice forms the subject of this judgment. The grounds upon which the
proposed amendment is objected to as per the notice of objection in terms of rule
28(3) can concisely be summarised as follows:
(a) the plaintiff’s proposed amendment was delayed which results in trial -related
prejudice to the defendants;
(b) the plaintiff’s proposed amendment has the effect of withdrawing admissions
previously made; and
(c) the plaintiff’s proposed amendment renders the plaintiff’s particulars of claim
vague and embarrassing, alternatively, lacking the necessary averments to sustain a
cause of action.
[5] The plaintiff contends that it has fully dealt with the grounds of objection as
formulated in the notice in terms of rule 28(3) in its founding affidavit. On behalf of
the plaintiff, it is argued that the defendants raised new objections in their answering
affidavit and/or amplified their grounds of objection and contends that the defendants
are not entitled to supplement their grounds of objections to the amendments in such
a way. In the amended particulars of claim , and as elaborated upon in the founding
affidavit deposed to by Robbert David Wiggett ( Mr Wiggett), the plaintiff avers that it
was the owner of approximately 295 motor vehicles and conducted, since 2008, a
was the owner of approximately 295 motor vehicles and conducted, since 2008, a
business in terms whereof the said vehicles were leased to third parties in lieu of
payment of the monthly rentals as per the terms of the respective lease agreements.
5
[6] During September 2019, the third defendant, a chartered accountant , a
shareholder and director of a number of companies, approached Mr Wiggett with a
proposal that the third defendant would raise funding for the expansion of the vehicle
rental fleet of the plaintiff. It was agreed that a separate entity, eventually the first
defendant, would be used to implement the proposal, and that the plaintiff would sell
the rights and obligations of a certain portion of its rental fleet as well as the relevant
vehicles to such separate company as a going concern. On 27 July 2020, the plaintiff
and the first defendant concluded a written sale agreement. Mr. Wiggett is the sole
director and sole shareholder of the plaintiff. He was authorized by resolutions from
both the plaintiff and the first defendant, and consequently represented both parties .
In terms of the sale agreement, the plaintiff sold to the first defendant its rental fleet
consisting of the vehicles set out in Schedule 1 together with accompanying rental
contracts, as an enterprise and going concern.
[7] The purchase price was determined at R46 821 270, which was payable as
follows:
(a) a deposit of R15 000 000 in cash upon signing of the agreement and the
balance, in the amount of R31 821 270 in monthly instalments of R688 992.40 over a
period of 54 months, payable on or before the first day of each month commencing
on the first day of the month following signature of the agreement;
(b) interest calculated at a rate of 7% per year linked to the prima rate from time to
time but not less than 6%, should the rate vary in subsequent years, per annum.
[8] Delivery of the vehicles would be made within a reasonable time whereafter
the risk pertaining to each individual vehicle would pass to the first defendant.
Should any party breach the agreement, the innocent party may demand specific
performance or cancel the agreement. On 7 August 2020, the plaintiff and the first
performance or cancel the agreement. On 7 August 2020, the plaintiff and the first
defendant concluded a written addendum to the initial sale agreement (appended as
annexure B) and on 28 October 2020, the said parties concluded a second written
addendum (appended as annexu re C) in terms whereof the sale price was reduced
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to R45 622 300 and would be payable as agreed. Furthermore, the plaintiff, by
signing the addendum, irrevocably ceded, delegated, assigned and transferred all of
its rights title s and obligations in and to the vehicles and the accompanying rental
agreements to the first defendant. It is alleged that both parties performed in terms of
the agreement as amended.
[9] On 20 December 2021, the plaintiff and the first defendant concluded a
written repurchase of share agreement as per annexure D . Mr Wiggett represented
the plaintiff and second- , alternatively the third defendant represented the first
defendant. In terms of the repurchase of share agreement , the plaintiff sold to the
first defendant its existing 1500 ordinary class A share capital . The remaining
balance of the purchase price on the sale agreement, as amended, and as due on
30 November 2021, being the amount of R21 331 088, would be paid as set out in
appendix C to the agreement. The fourth, fifth, and sixth defendants were parties to
the agreement but only in so far as they were existing shareholders of the first
defendant and had to consent to the transaction.
[10] On 23 August 2021, the second and third defendants bound themselves as
sureties and co-principal debtors onto and in favour of the plaintiff for the proper and
due fulfilment of the first defendant and pertaining to all the defendants’
responsibilities and debts owed to the plaintiff. The deed of suretyship is annexed as
annexure E. The plaintiff avers that the first defendant failed to effect payment of the
monthly instalments due as purchase considerations since December 2022 in the
total amount of R 4 927 699.37 (as set out in appendix F to the amended particulars
of claim ). The plaintiff therefore claims against the first, second, and third
defendants, jointly and severally, the one to pay the other to be absolved, payment of
the amount of R4 927 699, as well as interest on this amount, calculated at a rate as
the amount of R4 927 699, as well as interest on this amount, calculated at a rate as
set out in the sale agreement of 27 July 2020 from date of service of the summons
until date of final payment, alternatively such interest as calculated at the applicable
mora interest rate a te mpore morae, from 11 January 2023 until final date of
payment, and costs of suit.
[11] The current amended particulars of claim consists of ten pages whereas the
proposed amended particulars of claim , if so allowed , would consist of 42 pages.
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The plaintiff effectively requests that its existing amended particulars of claim be
substituted by the further amended particulars of claim, annexed to its notice of
intention to amend and marked as X. To avoid confusion, the proposed amended
particulars of claim X will be referred to as draft X. S ince the previous amendment of
the particulars of claim, the plaintiff terminated the mandate of its erstwhile attorneys,
resulting in the withdrawal of the erstwhile attorney of record (and counsel) and
substitution by Symington De Kok as the present attorney of record since 3 April
2024. On 29 May 2024, Mr Van der Walt SC was briefed to advise the plaintiff
regarding the continuation of the proceedings in the main action which eventually
resulted in the second and third notices regarding proposed amendments as well as
the fourth notice.
[12] The plaintiff contends that draft X records with sufficient particularity the
material facts (the facta probanda) , in chronological order, upon which the plaintiff
relies in support of its contractual claims against the defendants ; it is not necessary
for the plaintiff to plead supporting evidence (the facta probantia). The defendants, in
turn, can plead and reply to the material facts averred by the plaintiff. According to
the plaintiff , the material facts pleaded in draft X deal with the real issues for
determination between the parties , namely the terms and provisions of the relevant
contracts and the issues whether the first, second and third defendants a re liable to
the plaintiff in terms of its respective contractual claims.
[13] Rule 28 provides that any party desiring to amend any pleading or document ,
other than a sworn statement, filed in connection with any proceedings , must give
notice to all other parties to the proceedings of the intention to amend and furnish
particulars of the amendment. Where there is an objection to the amendment , the
particulars of the amendment. Where there is an objection to the amendment , the
notice of objection must clearly and concisely state the grounds upon which the
objection is founded. Rule 28(10) 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.’
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[14] It is trite law that a court hearing an application to permit an amendment has a
wide judicial discretion. T his is echoed in the wording of r ule 28(10). 1 When
exercising such discretion whether to permit an amendment, the court is required to
follow the well- established approach set out in Moolman v Estate Moolman 2
(Moolman) where it was held as follows:
‘[The] 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 purposes of justice in the same position as they were when the
pleading which is sought to amend was filed.’
[15] The approach in Moolman was endorsed in later decisions where it was held
that an amendment would not be allowed in circumstances which would cause the
other party such prejudice as could not be cured by an order of costs and, where
appropriate, a postponement. The power of the courts to allow even material
amendments is therefore limited only by considerations of prejudice or injustice to
the opponent in civil proceedings. In Trans-Drakensberg Bank Ltd (under judicial
management) v Combined Engineering (Pty) Ltd and Another
3 it was held that the
aim should be to do justice between the parties by deciding the real issues between
them.
[16] The applicable principles were summarised in Commercial Union Assurance
Co Ltd v Waymark NO
4 to be the following:
‘(a) The Court has a discretion whether to grant or refuse an amendment;
(b) An amendment cannot be granted for the mere asking; some explanation must be
afforded therefore.
(c) The applicant must show that prima facie the amendment “has something deserving of
consideration, a triable issue”.
1 Embling and Another v Two Oceans Aquarium CC 2000 (3) SA 691 (C) at 694G-H.
2 Moolman v Estate Moolman 1927 CPD 27 at 29.
2 Moolman v Estate Moolman 1927 CPD 27 at 29.
3 Trans-Drakensberg Bank Ltd (under judicial management) v Combined Engineering (Pty) Ltd and
Another 1967 (3) SA 632 (D).
4 Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (Tk).
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(d) The modern tendency lies in favour of an amendment if such “facilitates the proper
ventilation of the dispute between the parties”.
(e) The party seeking the amendment must not be mala fide;
(f) It must not “cause an injustice to the other side which cannot be compensated by
costs”.
(g) The amendment should not be refused simply to punish the applicant for neglect.
(h) A mere loss of time is no reason, in itself, to refuse the application.
(i) If the amendment is not sought timely, some reason must be given for the delay.’5
[17] The first objection raised by the defendants is that the proposed amendment
was delayed which results in trial-related prejudice to the defendants. It is contended
that when an amendment is not sought timeously , some explanation must be given
for the delay and the party applying must not be mala fide. The defendants contend
that some of the defendant ’s main witnesses, particularly Mr William S mit, have
already left the employment of the defendants and might be untraceable by the time
the matter is heard by the court.
[18] Trial-related prejudice refers to how a legal case is negatively impacted by a
trial delay or other procedural issue, potentially harming a litigant’s right to a fair trial.
Examples include a prolonged wait for a trial to commence or numerous
postponements during the proceedings which delay the finalisation of the matter.
These delays can cause prejudice through factors like loss of memory of potential
witnesses regarding the relevant events and death or the unavailability of witnesses.
Section 34 of the Constitution guarantees a litigant’s right of access to c ourt for
purposes of resolving a dispute.
6 This right is an embodiment of a common law
principle that a person has a right to a proper and fair hearing, which has, at its core,
the right of a litigant to present his or her version of the case before a court of law.
[19] I am not convinced that the fact that Mr William Smit is no longer in the
[19] I am not convinced that the fact that Mr William Smit is no longer in the
employment of the defendants can be relied upon as an objection against the
implementation of the proposed amendments. At this stage, t here is no indication
that Mr William Smit will not be available for the trial . The mere fact that he is no
5 Ibid at 77F-I.
6 Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others [2017]
ZACC 15; 2017 (5) SA 9 (CC) paras 61-64.
10
longer in the employment of the defendants does not mean that he will not be able to
testify during the eventual proceedings. I am furthermore not convinced that the
delay in the finalisation of this matter can be attributed entirely to the conduct or the
failure to take certain steps by the plaintiff only. Summons was issued on 24 April
2023. Since then, the process which followed included an exception by the first to
sixth defendants dated 15 May 2023, a notice of intention to amend by the plaintiff
dated 7 June 2023 and the defendants ’ objection in terms of rule 28(3) dated 23
June 2023. The application to amend was heard as an opposed application on 14
September 2023 and judgment was reserved. Similarly, the current application to
amend, also an opposed application was heard and judgment was reserved. These
delays in the finalisation of and delivery of the judgments take place so that every
litigant's rights to a fair trial may be realised.
[20] The plaintiff provided a reasonable and acceptable explanation for the delay
which occurred since the withdrawal of the previous attorney who acted on behalf of
the plaintiff, which also included the termination of the mandate of counsel previously
involved on behalf of the plaintiff . As a direct consequence of such withdrawal, t he
attorney on record for the plaintiff as well as Mr van der Walt SC had to consult with
the plaintiff and possible witnesses in an endeavour to become acquainted with the
facts and history of the matter which encompassed the numerous dealings and
contracts concluded between the parties. Mr van der Walt SC advised that it was
necessary to further amend the plaintiff’s particulars of claim and obviously received
instructions to proceed with the necessary steps to bring about the proposed
amendments.
[21] Even though the defendants waited for approximately a year before the fourth
notice to amend saw the light , it has to be taken into consideration that objections
notice to amend saw the light , it has to be taken into consideration that objections
were raised to each and every notice to amend by the defendants, which of course,
were filed in accordance with the rules of civil procedure. As explained by Mr van der
Walt SC, these objections were considered and, to a certain extent, found to be
meritorious which steered the plaintiff back to the drawing board. The process
inevitably caused delays in the speedy finalisation of the matter. However, a delay as
such does not prevent the granting of an amendment. An amendment based upon a
delay will only be refused if the applicant deliberately refrained, until a late stage of
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the proceedings, to apply for an amendment with the purpose of catching his
opponent by surprise or to obtain a tactical advantage or to avoid a special order as
to costs.
[22] Where a delay in bringing an application for leave to amend causes prejudice
to the other party which cannot be cured by an order of costs , the amendment will
generally be refused. In the matter at hand the parties have not yet embarked upon
the pre-trial stage and no trial date has been set. The plaintiff furthermore applies for
an order to rectifying the annexures (schedules) attached to the sale agreement in
order to identify the relevant annexures, namely the annexure (schedule) that
contains the list of vehicles (Schedule 1) and the annexure that records the 54
instalments in respect of the payment of the capital amount of R31 821 270
(Schedule 2). The plaintiff also seeks an order rectifying the written first addendum,
annexure B, to the amended particulars of claim through the deletion of the date ‘31
July 2020’ where it appears in the preamble, and by substitution thereof with the date
‘27 July 2020’. The date ‘30 November 2021’, where it appears in clause 5.1.5 of the
share repurchase agreement , is furthermore to be substituted with the date ‘ 1
November 2021’. No objection to the rectification of these dates and the conditional
claim for rectification in respect of the schedules has been raised by the defendants.
[23] The purpose of rectification is to have the written contract conform to the
common intention of the parties. Rectification is necessary before a court may
entertain evidence running counter to the written words unless all parties affected by
the error agree extrajudicially to remedy the situation. Notwithstanding the view of
the defendants not to oppose the rectification of these issues, I do, however, agree
with the contention that a significant period of time was spent on deciding upon the
with the contention that a significant period of time was spent on deciding upon the
contents of the eventual draft X – approximately a year – and that this aspect will
have to be considered when deciding upon a proper award as to costs.
[24] The defendants also objected to the plaintiff’s first notice to amend its
particulars of claim in respect of the claim for payment of interest, which was
dismissed by Van Zyl J on the basis that it was evident that the plaintiff pleaded its
case in respect of interest in para 9.2.3 of the particulars of claim ( as amended) on
the basis that the pleaded interest rate is what the parties agreed upon in terms of
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the sale agreement dated 27 July 2020, either expressly, alternatively impliedly , and
in the further alternative, tacitly. In para 9.2.3 of the amended particulars of claim the
plaintiffs claimed interest on the f ollowing basis: ‘Interest calculated at a rate of 7%
per year linked to the prime rate from time to time but not less than 6%, should the
rate vary in subsequent years, per annum’.
[25] In draft X however, interest is claimed by the plaintiff in respect of the main
claim for payment of the amount of R2 400 000 as follows: ‘2. Payment of interest on
the amount of R2 400 000 calculated at the rate of 7% per year from 1 December
2022 until date of payment; alternatively, interest in terms of the provisions of the
Prescribed Rate of Interest Act, N o 55 of 1975, a tempore morae until date of
payment.’ In respect of the amount of R2 478 109 claim is as follows: ‘4. Payment of
interest on the amount of R2 478 109 calculated at the rate of 7% per year from 1
January 2023 until date of payment; alternatively, interest in terms of the provisions
of the Prescribed Rate of Interest Act, N o 55 of 1975, a tempore morae until date of
payment.’
[26] Similar amendments are prayed for in respect of payment of interests
pertaining to the alternative claim for rectification of the share re purchase agreement
and payment of the amount of R2 400 000 and payment of the amount of
R2 478 109 as set out above. The objection is that these allegations amount to a
withdrawal of an earlier admission, or is in direct contradiction to the plaintiff’s prior
plea to the defendant’s second claim in contravention, in which the plaintiff pleaded
that the agreed interest rate was 7% linked to prime, but not less than 6% per
annum. The defendants contend that the proposed particulars of claim fails to set out
any factual or legal basis for now claiming interest at a different rate, or for reliance
on the Prescribed Rate of Interest Act 55 of 1975. The respondents contend that
on the Prescribed Rate of Interest Act 55 of 1975. The respondents contend that
there is no sworn explanation for this fundamental change in the applicants case and
that they are significantly prejudiced by the shifting and uncertain nature of the claim
they have to meet, having regard to the fact that the ‘reformulation’ of the plaintiff’s
claim happens more than a year after pleadings closed and after the respondents
filed their claims in reconvention.
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[27] The particulars of claim must contain a prayer for payment of interest if
interest is sought and must set out the grounds upon which interest is claimed. The
claims in terms of the original particulars of claim, the particulars of claim as
amended in terms of the order granted by Van Zyl J on 14 March 2024, the proposed
amendments being the second and third notices which were abandoned, as well as
the present proposed amendments as per draft X, are all based upon the same
contracts, namely the sale agreement, the addenda thereto, the deed of suretyship
and the share repurchase agreement. These contracts were concluded in the time
period from 27 July 2020 when the sale agreement was concluded up until 20
December 2021, when the share repurchase agreement was concluded.
[28] The contention on behalf of the defendants that the proposed amendment
pertaining to the claim for payment of interest at the rate of 7% , and no longer 7%
but not less than 6% , amounts to a withdrawal of an admission, is addressed by the
plaintiff on the basis that no admission is being withdrawn. The rights and obligations
of the respective parties have to be determined with reference to the terms of the
relevant contracts. Even though the rate of interest now inserted in the draft X is 7% ,
whereas the interest claimed previously was at the rate of 7% per year linked to the
prime rate from time to time but not less than 6%, should the rate vary in subsequent
years, per annum, and in the alternative, a claim based on the provisions of the
Prescribed Rate of Interest Act 55 of 1975, I am in agreement with the plaintiff that
such an amendment does not equate to a withdrawal of a previous admission.
[29] A rate of payment of interest on a judgment debt, including unliquidated debts
as determined by a court, and the payment thereof, are regulated by the Prescribed
Rate of Interest Act. Apart from interest a tempore morae and the special cases
Rate of Interest Act. Apart from interest a tempore morae and the special cases
where mora may be implied (for example, actions concerning money improperly
taken) there is no liability to pay interest upon any debt unless there was an
agreement or a course of dealing to that effect. This must , therefore, be alleged by a
plaintiff. An amendment to a pleading involving the withdrawal of an admission
stands in a rather different position from other amendments and is more difficult to
achieve because it involves a change of front, which requires a full explanation to
14
convince the court of the bona fides of the party seeking the amendment. Also, it is
more likely to prejudice the other party, who has been led by the admission to
believe that the fact in question need not be proven and who may, for that reason,
have omitted to gather the necessary evidence.
[30] An admission can be described as the action of admitting something as
proper, valid or true.
7 The consequences of a formal admission are twofold: firstly, it
obviates the need for proof of the admitted fact and, secondly, it prohibits parties
from disproving such a fact. In Botha v Van Niekerk
8 the court held that an admission
is an unequivocal agreement by one party with the statement of fact made by
another party. An averment in the particulars of claim regarding the rate of interest
applicable to the amount claimed by the plaintiff can hardly be described as an
admission made which is now being withdrawn by the plaintiff in draft X. An
allegation in the particulars of claim does not constitute a formal admission of facts.
9
At the trial, the plaintiff will still have to prove the facts as alleged in the particulars of
claim pertaining to the rate at which interest is claimed and whether such claim is in
accordance with the contract concluded between the relevant parties . The
defendants’ contention that the allegation pertaining to the rate of interest allegedly
applicable to the amount claimed constitutes an admission, is misplaced.
[31] It is contended that the plaintiff fails to plead with sufficient clarity what
instalments were due, when they were due, what interest is claimed or on what basis
the interest is calculated. The objection by the defendants essentially turns on the
reliance placed on annexure C/C1 to the share repurchase agreement in that the
content thereof differ s from annexure A to the deed of suretyship, more specifically
that the dates do not correspond and the interest rate is not the same. The
that the dates do not correspond and the interest rate is not the same. The
instalment amounts have not been included in annexure C1, whereas on annexure
A, such amounts, all being R599 457 from instalment number 18 up to and including
instalment number 54, appear. It is therefore argued that the plaintiff has failed to set
out how the amounts that the defendants must pay were calculated and these
contradictions render the draft X vague and unintelligible.
7 The New Shorter Oxford English Dictionary (1993) vol I at 28.
8 Botha v Van Niekerk 1947 (1) SA 699 at 703.
9 Wild Sea Construction (Pty) Ltd v Van Vuuren 1983 (2) SA 450 (CPD) at 452 F-H.
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[32] The contention on behalf of the plaintiff is that there was no suspension of the
obligation upon the first defendant to pay the remaining balance of the purchase
price in terms of the sale agreement as at 1 November 2021 in accordance with the
provisions of annexure C to the share repurchase agreement and, in the alternative,
such suspensive conditions were, in any event , duly fulfilled. The plaintiff contends
that the first defendant has failed and/or refused to effect payment of the remaining
balance of the purchase price payable by the first defendant to the plaintiff, as at 1
November 2021, in terms of the sale agreement, as amended and/or supplemented
by clause 5.1.5 of the share repurchase agreement , as it has to be rectified with the
remainder of the provisions of clause 5 of the share repurchase agreement, to be
rectified as set out and in accordance with the provis ions of annexure C to the share
repurchase agreement.
[33] The plaintiff has pleaded that the following payments were made to it:
(a) 3/11/2021 R 599 457.
(b) 1/12/2021 R599 457.
(c) 3/01/2022 R599 457.
(d) 1/02/2022 R1 000 000.
(e) 2/03/2022 R1 100 000.
(f) 1/04/2022 R1 200 000.
(g) 3/05/2022 R1 350 000.
(h) 1/6/2022 R1 650 000.
(i) 4/7/2022 R1 650 000.
(j) 5/08/2022 R1 800 000.
(k) 9/09/2022 R1 950 000.
(l) 11/10/2022 R2 100 000.
(m) 7/11/2022 R2 250 000.
___________
Total R 17 698 371.
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[34] In the plea filed by the first defendants dated 29 April 2024 it is recorded that
the different contracts are admitted in so far as the written terms of the agreement s
conform to the terms as pleaded. However, the content of annexure C is illegible and
the plaintiff is put to the proof of the contents of annexure C. It is denied that
annexure C recorded the manner of repayment of the capital amount outstanding in
monthly instalments as alleged by the plaintiff and the plaintiff is put to the proof
thereof. It is denied by the first defendant that the plaintiff is entitled, in terms of the
deed of suretyship, to interest claimed and prayed for by the plaintiff. It is furthermore
pleaded by the first defendant that annexure A to the deed of suretyship is illegible,
and the plaintiff is put to the proof of the contents of annexure A. Evidently , the
payment of the amount of interest claimed by the plaintiff has been a bone of
contention since summons has been issued.
[35] In the judgment of Van Zyl J , delivered on 14 September 2023, the objection
by the defendants pertaining to the alleged illegible documents that were annexed to
the plaintiff’s proposed amendment of the particulars of claim was dealt with, with
reference to case law and the provisions of rule 18(6). The plaintiff has already
provided an explanation as to why more clearly legible annexures of the relevant
written contracts and addendums , relied upon by the plaintiff , have not been
appended to the particulars of claim.
[36] Since the notice by the defendants in terms of rule 23(1) during May 2023 in
this regard, the plaintiff has endeavoured to provide more legible transcripts of the
agreements relied upon. Reprinted copies of the schedules (Schedule 1 and
Schedule 2) that are annexed to the sale agreement are annexed to draft X as,
respectively A1 and A2. In the alternative, and in the event that it is not clear that the
respectively A1 and A2. In the alternative, and in the event that it is not clear that the
one schedule contains the list of vehicles and the latter schedule records the 54
instalments in respect of the payments to be made in respect of the sale agreement,
the plaintiff claims rectification of the sale agreement and the annexures thereto.
There is no objection to the recertification of the sale agreement as set out in
paragraph 13 of draft X.
17
[37] Van Zyl J dismissed the opposition to the initial amendment in respect of the
illegible annexures to the particulars of claim on the basis that an explanation why
more clearly legible annexures have not been annexed was provided by the plaintiff.
I therefore do not deem it necessary to deal with this issue again.
[38] The objection by the defendants that the plaintiff’s proposed amendment as
per draft X renders the plaintiff’s particulars of claim vague and embarrassing,
alternatively lacking the necessary averments to sustain a cause of action, inter alia,
relates to the instalments which, according to the plaintif f were unpaid. In terms of
clause 1 of the deed of suretyship, the obligations secured are limited to the debtor’s
obligations arising from the creditor’s shareholder’s loan of R 22 739 700 as of 1
August 2021, or any novation thereof , as well as costs. Clause 2 of the deed of
suretyship provides that repayment of the loan will occur as per annexure A and that
the sureties become liable only for such instalments as the debtor fails to pay in
terms of annexure A. The defendants contend that annexure A was only introduced
in the third notice to amend, some two years after the action was instituted, and said
annexure differs from annexure C and its reprinted version, annexure C 1 to the
share repurchase agreement. The contention is that the repayment dates and the
amounts in these annexures do not correspond.
[39] In addition, the plaintiff, now in the fourth notice, seeks to rely on an averment
that the deed of suretyship was amended or supplemented by clause 5.3 of the
share repurchase agreement and further that the first defendant agreed to amend or
supplement the sale agreement to provide for repayment in terms of annexure C.
The argument on behalf of the defendants is that the annexures , being C and C1, do
not reflect the instalments and the defendants cannot ascertain which instalments
not reflect the instalments and the defendants cannot ascertain which instalments
are alleged to have been unpaid, on which dates they became due, what amounts
are claimed as interest or how such interest has been calculated.
[40] Rule 18(4) of the Uniform Rules of Court provide as follows: ‘ Every pleading
shall contain a clear and concise statement of the material facts upon which the
pleader relies for his claim, defence or answer to any pleading, as the case may be,
with sufficient particularity to enable the opposite party to reply thereto’. In Trope v
18
South African Reserve Bank,10 the Supreme Court of Appeal dealt with an exception,
it was held that in order to determine whether a pleading is vague and embarrassing
the pleading must be read as a whole. 11 An exception to a pleading on the ground
that the pleading was vague and embarrassing involves a two- fold consideration.
The first issue is whether the pleading lacks particularity to the extent that it is vague
and the second is whether the vagueness causes embarrassment of such a nature
that the excipient is prejudiced. There are authorities that support the proposition that
an amendment should be refused if it is clear that the amended pleading will (not
may) be excipiable.
12
[41] The starting point is that the court must accept as correct the allegations
contained in the particulars of claim, incorporating the proposed amendment, and
determine whether those allegations are capable of supporting a cause of action in
respect of the plaintiff’s claim.
13 The plaintiff relies on the sale agreement, addenda
thereto, the deed of surety and the share repurchase agreement in support of its
claim for the first defendant’s indebtedness to the plaintiff on the basis that the
clauses identified in draft X are not rectified and also in the event that the clauses as
identified in draft X are rectified. It is alleged by the plaintiff that the payments, as set
out and as contained in draft X, were made to the plaintiff and that the first defendant
has failed and/or refused to effect payment of the remaining balance of the purchase
price with reference to annexure C. In respect of the claim for payment against the
first, second and third defendants’ indebtedness to the plaintiff , reliance is thus
placed upon the content of annexure C appended to draft X.
[42] From annexure A the following can be ascertained: the sequence of
instalments, from the first instalment in September 2020 to the 54
th instalment in
instalments, from the first instalment in September 2020 to the 54
th instalment in
February 2025, being 54 months, the amount of each such instalment, the opening
capital and the interest as c alculated and reflected. The number of instalments
reflected on annexure C, appear to be 28 whereas the number 13 appears twice in
year two, which means 29 instalments are recorded. The amount of each of the
10 Trope v South African Reserve Bank 1993 (3) SA 264 (A); See also Trope v South African Reserve
Bank 1992 (3) SA 208 (T).
11 Ibid at 268.
12 Krische v Road Accident Fund 2004 (4) SA 358 (W) at 363A-D and the authorities referred therein.
13 Stewart and Another v Botha and Another 2009(6) SA 310 (SCA) para 4.
19
instalments appears for the first 16 months, however having regard to the fact that
instalment 13 appears twice, it means that only the instalments for the first 17
months appear on annexures C and C1. The amount due in respect of any of the
subsequent instalments has not been calculated and cannot be ascertained from the
contents of annexure C.
[43] The payments which have been made, according to the plaintiff, since 3
November 2021, have not been incorporated in annexure C. The instalments paid
since 1 September 2020 up to and including January 2022 have been incorporated
in annexure C, which is obviously a computer -generated calculation. The plaintiff is
required to plead the facts pertaining to the instalments due: which instalments were
made, when such instalments were made and how the interest in respect of the
amount due and owing, as demanded by the plaintiff, is calculated to enable the
defendants to determine the quantum of the plaintiff’s claim. Only then will the
defendants be in the position to properly assess the quantum of the plaintiff’s claim.
[44] Having regard to the amended particulars of claim, draft X , as well as the
contents of the plea together the further pleadings already filed in this regard, it
seems, which, at this point is merely a prima facie view only, that the main issue s
between the parties are the calculation of the plaintiff’s claim and the interest upon
such an amount , and as regards to the interest, the rate of interest. In Benjamin v
Sobac South African Building and C onstruction (Pty) Ltd
14 it was held that where a
proposed amendment will not contribute to the real issues between the parties being
settled by the court , the amendment should not be granted as granting such
amendment will simply prolong and complicate the proceedings for all concerned,
and will not contribute towards the adjudication of the genuine dispute between the
parties.
[45] The argument that the defendants will be able to do a recalculation of the
parties.
[45] The argument that the defendants will be able to do a recalculation of the
amount due to the plaintiff based upon the averments made in d raft X and as
supported by the annexures, is, in my view, misplaced. The plaintiff failed to plead
with particularity how the amounts claimed are made up and calculated with the
14 Benjamin v Sobac South African Building and Construction (Pty) Ltd 1989 (4) SA 940 (C) at 958B.
20
result that the defendants are not placed in a position to reasonably assess the
quantum of the plaintiff’s claim. In the result , I agree with the argument raised on
behalf of the defendants that the instalments which have allegedly not been made,
the dates when they became due, what the amounts of the instalments amounted to,
what amounts are claimed as interest or how such interest has been calculated are
indeed deficient, rendering the proposed amendment vague and prejudicial to the
defendants.
[46] During argument, Mr Van der Walt SC conceded that the plaintiff ought to pay
the defendants ’ wasted costs in respect of the second and third notices for
amendment in accordance with the provisions of rule 28(9).
[47] It is apparent that evidence will be required for a proper determination of the
issues upon which the parties are not in agreement. Those issues are more
appropriately to be determined by the trial court on evidence before it. The
defendants will be able to plea to t he majority of the plaintiff’s detailed allegations in
the proposed amended particulars of claim, draft X. However as to the calculation of
the specific amounts claimed by the plaintiff as amplified by the amounts and dates
reflected in the annexures , more specifically annexure A and C/C1, I am in
agreement with the defendants that those allegations and calculations are not
formulated in a way that allows the defendants to ascertain clearly what the case
against them entails and therefore does not enable the defendants to plead on it. In
this regard, I am mindful that the primary object of allowing an amendment is for the
proper ventilation of the dispute between the parties in order to determine the real
issues between them, so that justice may be done.
15
[48] Although the majority of objections raised by the defendants to the proposed
amendment are unsuccessful, the proposed amendment cannot succeed merely due
amendment are unsuccessful, the proposed amendment cannot succeed merely due
to the fact that it is contained in one document being draft X. There is no reason that
costs should not follow the event.
Order
[49] In the result, I make the following order:
15 YB v SB [2015] ZAWCHC 109; 2016 (1) SA 47 (WCC) para 11.
21
1. The application to amend its particulars of claim in accordance with Annexure
X to its notice of intention to amend is dismissed with costs, which costs shall include
costs of two counsel (where so employed) on Scale B.
2. The plaintiff shall pay the wasted costs in respect of the second and third
notices of intention to amend, respectively dated 22 August 2024 and 4 March 2025
_______________________
I VAN RHYN
JUDGE OF THE HIGH COURT
Appearances
For the applicant: D J van der Walt SC
Instructed by: Symington De Kok Attorneys
Bloemfontein
For the defendants: Y Coertzen and B C Bester
Instructed by: A P Pretorius Attorneys
Bloemfontein