IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Reportable/Not Reportable
Case no: 9983/2023
In the matter between:
USA DISTILLERS (PTY) LTD Plaintiff/Respondent
and
ASPEN INTERNATIONAL (PTY) LTD Defendant/Applicant
Neutral citation: Aspen International (Pty) Ltd v USA Distillers (Pty) Ltd.
Coram: MANGCU-LOCKWOOD J
Heard: 18 March 2026
Delivered: 26 March 2026
__________________________________________________________________
ORDER
__________________________________________________________________
1. The application to amend is refused, and the objection is upheld.
2. The defendant is to pay the costs of this application on an attorney and
own client scale, including costs of counsel.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MANGCU-LOCKWOOD, J
A. INTRODUCTION
[1] This is an opposed application for amendment of the defendant’s plea. The
plaintiff instituted action against the defendant for damages arising from
contamination of International Standard Tank Containers (‘ISO tanks’) containing
ethanol, which were refused entry in Keelung, Taiwan. The plaintiff ’s claim is
based on a breach of agreement between it and the defendant, the terms of which
include the supply of the ISO tank containers for export of the ethanol to a client of
the plaintiff in Taiwan. The defendant denies concluding the agreement in its
personal capacity, pleading that it acted as a clearing and forwarding agent on
behalf of a third party.
[2] After pleading the terms of the alleged agreement and compliance therewith,
the plaintiff plead ed the breach of agreement as follows a t paragraphs 4 to 17 of
the particulars of claim:
“12. However, on arrival at the Port of Keelung, and on or about 21 November
2021, two of the seven ISO tank containers were found by the Taiwanese
authorities to contain contaminated ethanol.
13. The Taiwanese authorities accordingly refused to allow the seven ISO tank
containers to be imported into Taiwan.
14. The ethanol in the two ISO tank containers was contaminated because the
supplied ISO tank containers were not properly cleaned prior to supply to
the Plaintiff, and /or were not free from residue f rom materials previously
stored in the tank containers, and/or did not meet the industry standards
for cleanliness, safety, and quality preservation.
15. The defendant accordingly breached the agreement.
16. As a result of defendant’s breach of the agreement:
16.1 The seven ISO tank containers were rejected for import into
Taiwan.
16.2 The plaintiff could not fulfil its obligations in terms of its contract
with its client in Taiwan.
16.3 In order to mitigate its damages, the plaintiff re-exported the
ethanol to another client as a lower quality product at a
substantially lower price.
16.4 The plaintiff had to pay additional shipment charges to transport
the ethanol to its alternative client in Rotterdam in the Netherlands
during August 2025.
16.5 The plaintiff was liable for storage and demurrage charges for the
storage of the ISO tank containers at the Port of Keelung, Taiwan
for an extended period, from arrival of the tank containers and up
until 5 August 2022.
16.6 The plaintiff h ad to incur additional costs to test samples of the
ethanol.
17. The plaintiff suffered damages in the amount of US $ 97 860. 86 .
Particulars as to how these damages are calculated are as follows:
17.1 US$ 47 567.33, being the difference between the forfeited selling
price agreed upon between plaintiff and its customer in Taiwan and
the selling price plaintiff received from the alternative buyer in the
Netherlands, plus freight charges from Taiwan to the Netherlands;
plus
17.2 US$ 50 293.53, being the total storage and demurrage charges
incurred by plaintiff in the port of Keelung, Taiwan, laboratory
analysis of ethanol samples, and costs associated with the
transportation of samples”.
[3] In response t o all these allegations, the defendant pleaded as follows in
paragraph 3.1 of its plea:
“The defendant denies that it entered into a contract with the plaintiff as pleaded
in 2.4 above and plaintiff is put to the proof thereof”.
[4] Paragraph 2.4 referred to in this paragraph states as follows:
“The defendant attended the meeting merely as a clearing and forwarding agent
on instructions from Newport Europe BV”.
[5] Thus, there was no response in the plea as regards the alleged breach of
contract within the contemplation of Uniform Rule 22 which requires a defendant
to admit, deny, confess and avoid the allegations in t he particulars of claim or to
state what is not admitted. In the same vein, there was no response as regards the
alleged refusal of entry by the Taiwanese authorities. The result is that, as stated in
Uniform Rule 22(3), if a fact is not stated to be admitted or denied, it is taken to be
admitted.
[6] At a pre -trial meeting between the parties ’ legal representatives held on 13
July 2024 the parties agreed that the only issue to be adjudicated by the court was
whether the defendant was a party to the contract pleaded in the particulars of
claim. Further, that if the court were to find that the defendant was a party to the
agreement, then the plaintiff was entitled to judgment , and that if the court found
that the defendant was not a party to the contract then the claim should be
dismissed. A transcript of that meeting confirms the agreement, and also that the
attorney representing the defendant confirmed that ‘everything else ’, apart from
whether the defendant was a party to the contract, was common cause.
[7] On 27 September 2024 the defendant delivered a notice of intention to
amend its plea in which it : pleads that it has no knowledge of whether the
containers were filled with extra neutral ethanol; specifically denies the contents of
paragraphs 12 to 14 of the particulars of claim; denies the breach of agreement;
and denies the allegations of incurred damages by the plaintiff.
[8] On 30 September 2024 the plaintiff noted an objection, stating that the effect
of the amendment would be to widen the ambit of the defendant’s case, contrary to
the agreements reached at the pre -trial meeting, and would amount to withdrawal
of admissions made , without explanation. The defendant too k no further steps
thereafter, and as a result, the intention to amend lapsed. It was a year later, on 2
October 2025 that it delivered another notice of intention to amend, in terms
identical to the previous notice, and it is this latter application that is the subject of
this application.
B. THE RELEVANT LAW
[9] Before discussing the parties’ contentions, it is well to set out the applicable
law. A decision regarding whether to grant or refuse an application to amend a
pleading rests within the discretion of the court .1 The Constitutional Court 2 and
Supreme Court of Appeal 3 (SCA) have confirmed the practical rule that emerges
from case law, that amendments will always be allowed unless the amendment
is mala 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. The question in
each case, said the Constitutional Cout4, is what do the interests of justice demand.
[10] The modern tendency of the courts lies in favour of an amendment whenever
such an amendment facilitates the proper ventilation of the dispute between the
parties.5 The power of the court to allow even material amendments is therefore
limited only by considerations of prejudice or injustice to the other side.6
[11] In Amod7, the court summarised the position pertaining to withdrawal of
admissions already made, as follows:
‘I consider that the true position in the case of the withdrawal of an admission is as
follows. The Court has a discretion but will require a reasonable explanation both of the
1 Caxton Ltd. and Others v Reeva Forman (Pty) Ltd. and Another (393/88) [1990] ZASCA 47; 1990 (3) SA 547
(AD); [1990] 2 All SA 300 (A) (17 May 1990) at 565G.
2 Affordable Medicines Trust and Others v Minister of Health and Another (CCT27/04) [2005] ZACC 3; 2006 (3)
SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) para 9, referring to Commercial Union Assurance Co Ltd
v Waymark NO 1995 (2) SA 73 (TK) at 76D -76I and Moolman v Estate Moolman and Another 1927 CPD 27 at 29.
3 Media 24 (Pty) Ltd v Nhleko and Another (109/22) [2023] ZASCA 77 (29 May 2023) para 16.
4 Affordable Medicines Trust at para [9].
5 Media 24 (Pty) Ltd v Nhleko and Another (109/22) [2023] ZASCA 77 (29 May 2023) para 16.
6 Ibid.
6 Ibid.
7 Amod v South African Mutual Fire And General Insurance Co Ltd 1971 (2) SA 611 (N).
circumstances under which the admission was made and of the reasons w hy it is sought
to withdraw it. In addition, the Court must also consider the question of prejudice to the
other party. If the result of allowing the admission to be withdrawn will cause prejudice
or injustice to the other party to the extent that a specia l order as to costs will not
compensate him then the application to amend will be refused. It should, however, be
noted that the fact that the amendment will cause the respondent to lose his case is not of
itself "prejudice" or "injustice" in the sense dis cussed above. (Zarug v. Parvathie,
supra at p. 884; South British Insurance Co., Ltd. v. Glisson, supra at p. 294;
cf. Stolz v. Pretoria North Town Council, 1953 (3) SA 884 (T)).’8
[12] It has been held that an amendment to cure a tactical advantage which the
other party may enjoy is not the type of prejudice which is contemplated by
prejudice that cannot be cured by an award of costs or a postponement.9
[13] The Court in Amod10 also referred to Rishton11 where it was held that, in
judging whether it ought or ought not to grant an amendment it is very necessary
for the court to consider whether the admission as contained in the pleading is
exactly as the client would have wished the admission to have been made before
the Court.12 The Court in Whittaker13 explained as follows:
‘This Court has the greatest latitude in allowing amendments and it is very
necessary that it should have. The object of the Court is to do justice between the
parties. It is not a game we are playing, in which, if some mistake is made, the
forfeit is clai med. We are here for the purpose of seeing that we have a true
account of what actually took place, and we are not going to give a decision upon
8 614H-615A.
9 Ergo Mining (Pty) Limited v Ekurhuleni Metropolitan Municipality and Others (2014/45277) [2020] ZAGPJHC
134; [2020] 3 All SA 445 (GJ) (8 June 2020) para 8.
134; [2020] 3 All SA 445 (GJ) (8 June 2020) para 8.
10 Amod v South African Mutual Fire And General Insurance Co Ltd 1971 (2) SA 611 (N) at 614C-D.
11 Rishton v. Rishton, 1912 T.P.D. 718 at p720.
12 See also reference to Northern Mounted Rifles v O'Callaghan, 1909 T.S. 174 at p178.
13 Whittaker v. Roos and Another, 1911 T.P.D. 1092 at p. 1102. Discussed in Amod at 615B-D.
what we know to be wrong facts. It is presumed that when a defendant pleads to a
declaration he knows what he i s doing, and that, when there is a certain
allegation in the declaration, he knows that he ought to deny it, and that, if he
does not do so, he is taken to admit it. But we all know, at the same time, that
mistakes are made in pleadings, and it would be a very grave injustice, if for a
slip of the pen, or error of judgment, or the misreading of a paragraph in
pleadings by counsel, litigants were to be mulcted in heavy costs. That would be a
gross scandal. Therefore the Court will not look to technicalities , but will see
what the real position is between the parties.’
[14] The position is summarised as follows i n Erasmus14, where it is noted that
an amendment involving a withdrawal of an admission is not put on a basis
different from any other amendment:
‘The approach is the same, 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 fides thereof, and (ii) it is more likely to prej udice the
other party, who had by the admission been led to believe that he need not prove the
relevant fact and might, for that reason, have omitted to gather the necessary evidence.’
The court will, therefore, in the exercise of its discretion, require an explanation of the
circumstances under which the admission was made and the reasons for now seeking to
withdraw it.’
C. THE APPLICATION
[15] The affidavit supporting the application for amendment is deposed by the
attorney representing the defendant, Mr Lombard, and he admits to reaching the
agreements at the pre -trial meeting. He explains that the agreements were made
erroneously and that it was never his intention to concede that the d efendant
breached any obligations in terms of the agreement pleaded or that the ISO tanks
breached any obligations in terms of the agreement pleaded or that the ISO tanks
were contaminated. He states that, since the defendant has explicitly stated that it
was not a party to the ISO tank agreement it could not admit that the tanks were
14 Superior Court Practice at RS 28, 2025, D1 Rule 28-12.
refused entry by the Taiwanese authorities on account of contamination; or that the
tanks were contaminated; or that the alleged contamination was the result of a
breach of agreement by the defendant. He states that the proposed amendment is
bona fide and does not prejudice the plaintiff but merely seeks to clarify the true
issues in dispute between the parties. In addition, he states as follows:
“The [defendant] disputes that the ethanol that forms the basis of this claim was
contaminated. In this regard, I am instructed that foreign authorities are known to
miss state this position and [the defendant] suspects that [the plaintiff] is unable to
prove the contamination. This aspect is bou nd to be a central question in the
dispute as well as, if contamination is proven, the source thereof’.
[16] In the affidavit Mr Lombard states that he holds instructions to tender the
plaintiff’s wasted costs occasioned by the amendment application, but not if it is
opposed.
[17] The plaintiff filed an answering affidavit, which is deposed by the director of
the plaintiff. First, the plaintiff complain s that Mr Lombard has no personal
knowledge of the factual basis on which the defendant se eks to deny allegations
previously admitted. Then, it is pointed out that the defendant is seeking to
withdraw admissions previously made, without setting out the special
circumstances giving rise to th e withdrawal. Further, the plaintiff alleges that the
application is mala fide and constitutes an abuse of the court process.
[18] Starting with the last attack, the allegations of mala fides rely substantially
on the delay in bringing the amendment application, and also the averment made in
Mr Lombard’s affidavit that the purpose of the amendment is effectively to cause
the plaintiff to prove all the elements of its claim which he says his client suspect s
the plaintiff will b e unable to prove, and especially the alleged contamination of
the tanks. The plaintiff states that this shows that the retraction of the admission is
not genuine but is being employed as a tactical strategy.
[19] On the basis of these averments the plaintiff states that the attempt to
withdraw the admission is clearly for tactical reasons and that no basis is laid for it.
Furthermore, it states th at the withdrawal will prejudice it because the pla intiff
would now need to source evidence of the contamination; that the laboratory is in
Taiwan and is unlikely to have retained samples after this extended period.
[20] In reply , Mr L ombard denies that he lacks personal knowledge of the
underlying facts, emphasising that he has personal knowledge of the facts that gave
rise to the plea being filed as well as the circumstances under which the admissions
made at the pre -trial meeting were made since it is he who a ttended it and made
them. He also disputes the allegations of mala fides, emphasising that he made an
error. Although he does not dispute the timeline set out by the plaintiff from the
time that the action was launched, which shows a delay of some two years from
close of pleadings to the bringing of this application, he emphasizes that between
30 September 2024 and 5 November 2024, he was awaiting delivery of the
recording of the pre-trial meeting of 13 July 2024 which he had requested from the
plaintiff’s attorney.
[21] One of the annex ures in the application is a letter from Mr L ombard dated
26 August 2024, just over a month after the pre-trial meeting in which he stated as
follows in response to a draft of the pre-trial minute of 13 July 2024:
“7. ... it appears to write r that the minute contains an error c aused by a
misunderstanding. The minute records that the sol e issue between the
parties is whether our client ... was a party to the agreement pleaded in
paragraph 3 of the particulars of claim.
8. However, the dispute cannot be reduced to this simple question, but must
also include the question of the terms of the agreement.
9. Your client’s case, as understood by us, is based on alleged deficiencies in
the ISO tank containers utilised to ship its ethanol.
10. Our client’s case is that it merely acted as a clearing and forwarding agent
between your client and Newport Europe BV , and that it did not accept
liability for the standard or any possible defect in the ISO tanks.
11. Leaving aside the qu estion of whether the ISO tanks were deficient as
alleged by your client, it is likely that the trial will also turn on the terms
of the agreement.
12. To the extent that our client ’s case is unclear from the plea, we intend to
deliver a notice to amend same”.
[22] Thus, within just over a month of the pre -trial meeting the defendant’s
attorney notified the plaintiff’s attorneys of an intention to amend, and of an error
which he says was caused by a misunderstanding. Whilst Mr Lombard may be
criticised for making such an error as a legal representative, there is no basis to
conclude it was mala fide. There is no such evidence.
[23] And the fact that he refers in his affidavit to a need by the plaintiff to prove
its case is also not evidence of mala fides but an incident of the onus that usually
falls upon a plaintiff when instituting action proceedings. It has been held, in any
event, that an amendment to cure a tactical advantage which the other party may
enjoy is not the type of prejudice which is contemplated by prejudice that cannot
be cured by an award of costs or a postponement.15
[24] Nor is there evidence that the delays incurred from the time that the plea was
issued until the notice of intention to amend was delivered, constitute , in
themselves, mala fides. There is no basis to conclude so, whether on the part of Mr
Lombard or on the part of his client , although the plaintiff’s frustration at the
defendant’s dilatoriness is understandable.
[25] The next issue for consideration is whether the withdrawal of the admission
results in prejudice of such a nature as to preclude the defendant fro m effecting its
amendment. The prejudice alleged by the plaintiff is that it will now be compelled
to prove, years later, matters which had been treated as common cause, including
contamination, the circumstances of the refusal of entry, causation, and quantum
likely requiring evidence from Taiwan which may no longer be available. It states
that that prejudice cannot be cured by a costs order.
[26] There is significant force to the argument. One important consideration
when considering the alleged prejudice is that the plea that is sought to be amended
was delivered in September 2023, and it has taken the defendant some two years to
bring this application. By the time that the pre -trial meeting between the parties
was held on 13 July 2024, a period of just under a year had elapsed in which there
was no mention of an ensuing amendment. And the common cause f acts between
the parties were confirmed at the pre-trial meeting of 13 July 2024.
15 Ergo Mining (Pty) Limited v Ekurhuleni Metropolitan Municipality and Others (2014/45277) [2020] ZAGPJHC
134; [2020] 3 All SA 445 (GJ) (8 June 2020) para 8.
[27] It is in that combined historical context that the plaintiff’s argument that the
defendant should provide sufficient explanation for its about -turn is to be viewed .
Even if Mr Lombard’s explanation may suffice as regards the errors he made at the
pre-trial meeting, there remains no explanation for the change of face from the
position adopted in the plea. All that is stated in the founding affidavit in regard to
the plea is that:
“23. With the benefit of hindsight I concede that the aforesaid three aspects16 should
have been disputed explicitly, but a failure to directly address the allegations
pertaining thereto do not, I respectfully say, amount to a positive adm ission
thereof.
24. This is so because a denial of these aspects is implicit in the defendants primary
defence. Clearly the defendant could not breach an agreement to which it is not a
party, nor does the defendant have direct knowledge of the alleged
contamination.”
[28] Clearly, the averments made by Mr. Lombard at paragraph 23 fly in the face
of the contents of Uniform Rule 22 to which I have already referred. There is no
explanation in this application for why the identified three aspects were not
addressed directly in the plea , whether by reference to an error or anything of the
sort, especially given the length of time it took to bring the amendment. One
imagines that by the time it was thought necessary to bring the application there
would be a reason.
[29] It is also not enough, as contended by Mr. Lombard, that the defendant
denies being a party to the agreement in the plea, otherwise this application would
16 The three aspects referred to are set out at paragraphs 22.1 – 22.3 of the founding affidavit as follows: (1) that the
two tanks were refused entry by the Taiwanese authorit ies on account of contamination; (2) that the tanks were
contaminated; and (3) that the alleged contamination was the result of a breach of the agreement by the defendant.
not have been necessary. It is relevant in this regard that the position adopted by
the defendant in the plea is not that i t has no knowledge of the circumstances
alleged in the particulars of claim. Its position is that it acted as a clearing and
forwarding agent on behalf of another, and it is on that basis that it denies having
entered into a contract with the plaintiff.
[30] The defendant also does not deny the averments made in the particulars of
claim that the ISO tank containers were supplied to the plaintiff. That much was
repeated in his letter of 26 August 2024, where it is stated that the defendant
“merely acted as a clearing and forwarding agent between your client and
Newport Europe BV , and that it did not accept liability for the standard or any
possible defect in the ISO tanks” . Since it also alleges that it attended the meeting
at which the agreement was reached, one would have therefore expected it to
specifically address the so -called three aspects relating to the alleged
contamination and the denial of access to Taiwan, or to explain why the failure to
address them is now being undertaken. It is in that regard that the plaintiff states
that Mr Lombard's explanation is not adequate.
[31] It is one thing for him to admit to an error made in the pre -trial meeting.
Given that the effect of undoing his error also amounts to undoing an admission
made a year prior in his client’s plea, more is required. One is left wondering what
the actual intentions of his client are, or have always been. 17 It is no wonder that
the plaintiff’s attorney conveyed his client’s concerns to Mr Lombard in an email
dated 18 September 2025 as follows: ‘My client has become concerned that the
reason for the delay may be that you are not receiving instructions from your
client.’
17 See Rishton v. Rishton, 1912 T.P.D. 718 at p720.
[32] It is also in that regard that the plaintiff has set out allegations to the effect
that the defendant was aware that the tanks were contaminated, as follows:
‘30. It does not follow from its denial that the Defendant was a party to the agreement
that the Defendant denies the tanks were contaminated. The defendant is aware
that the tanks were contaminated. It knows that the tanks were refused entry by
the Taiwanese authorities due to contamination. Indeed, on 15 November 2021,
Mr Stapelberg and I (on be half of the plaintiff) met in Kloof, Durban, with Alix
Visser (representing Newport), Gary van Niekerk (representing Aspen), and
Burger Pretorius representing Illuvia to discuss the contaminated tanks. Visser
and van Niekerk made it clear that Aspen and N ewport were working together on
the problem.
31. Visser said that it would be necessary to have samples drawn from the
contaminated tanks in Taiwan, and have the samples analysed again by an
independent laboratory, the purpose being to try to establish what the contaminant
is. It took about five months for us to get permission from Taiwan customs to
draw samples. In the end it was a useless exercise because the laboratory that
Newport had identified could not even perform the tests they were asking for.
They then sent the samples to a laboratory that we had identified. But they said
that the only thing they want to do is re -test the permanganate time, there was no
call or request made to try and test for any contaminant, which was supposed t o
have been the reason for the tests.
32. Permanganate time is a test used to measure the level of oxidizable impurities in a
substance by timing how long it takes for a solution of potassium permanganate to
change colour. The potassium permanganate solu tion is pink -orange, and the
colour fades to yellow -orange as it reacts with impurities. A longer time before
the colour changes indicates a purer sample, while a shorter time signifies more
the colour changes indicates a purer sample, while a shorter time signifies more
impurities. This test is frequently used for chemicals like met hanol, and in the
shipping industry to test tank cleanliness.
33. Our laboratory confirmed that the tanks were contaminated. The Defendant is
well aware of this. It knows that the tanks were contaminated.”
[33] It is not necessary to determine the veracity an d evidential value of the
allegations above, and they are a matter for determination in the main trial .
However, the allegations re-inforce what is not denied in the un -amended plea,
namely that the defendant is, and was , involved in the facts relied upon the
particulars. While I accept that Mr Lombard seeks to correct an error he made at
the pretrial meeting of 13 July 2024, that is not all that is sought to be amended,
and that is not all that needs explaining.
[34] All of this raises questions about wh at exactly the defendant as client would
have wished to have pleaded in his plea. Whilst it may be inferred from the current
plea that the defendant could not have intended to admit to breaching the
agreement it states it was not a party to, it is not so easy to understand what the
intention was regarding the contamination and the circumstances surrounding the
refusal of access to Ta iwan. That remains unexplained. That is relevant to the
question of what the true or real issues between the parties are in the trial.
[35] Also hard to swallow is the delayed period following the letter of 26 August
2024. Whilst the defendant did indeed deliver the initial notice to amend, it
allowed it to lapse. According to Mr. Lombard he was awaiting a copy of the
transcript which he had requested from the plaintiff’s attorney. The evidence
indicates that it was provided to him on 5 November 2024 and that it took almost a
year for the application to be launched. In fact, on 11 December 2024 the
plaintiff’s attorney wrote to him pointing to the failu re to deliver an amendment
application and recording that his client assumed the defendant had no further
intention of proceeding with its application to amend. There is no answer to these
allegations. Nor does there appear to have been a response to the l etter of 11
December 2024.
[36] While the prevailing law is that an application of this nature is near -always
admitted, there are some applicable provisos, including that the amendment should
not result in injustice and prejudice which cannot be cured by a costs order, and
that the applicant must furnish sufficient explanation. The applicant has failed to
meet the standard of providing sufficient explanation, and it bears the onus in that
regard in this application.
[37] As for the prejudice, the plaintiff ’s cla im is that the withdrawal of the
admissions will require it to source evidence that it considered to be common
cause, and which it has omitted to gather, including in respect of the
contamination. The express admissions reached at the pre -trial meeting were
significant in the extent to which they limited th ose issues between the parties. In
that context, Mr Lombard as a legal practitioner would have appreciated that fact
when he and his client allowed the first notice to amend lapse ; and when he failed
to respond to the letter of 11 December 2024 from the plaintiff’s attorney which
specifically recorded that the plaintiff assumed the defendant had no further
intention of proceeding with its application to amend ; and when he took a fur ther
ten months before delivering this application for amendment. That conduct is
egregious, if not reckless.
[38] It is common cause that the important aspect in which the plaintiff may be
prejudiced in the trial relates to the alleged contamination, includin g whether the
laboratory in Taiwan has retained the relevant samples of the alleged
contamination. It is not disputed that there is a strong likelihood in that regard
given the length of time that has elapsed. The defendant postulates its suspicion
that no report exists from th at laboratory. This is not an answer to the plaintiff’s
claim of prejudice . The plaintiff also points to its omission to gather evidence
relating to the contamination in general as a result of the common cause nature of
that aspect thus far , and i n response the defendant’s affidavit alleges that ‘foreign
authorities are known to miss -state this position’ , presumably as regards whether
or not there is contamination. Neither approach is an answer to the prejudice relied
upon by th e plaintiff which cannot, at this stage or at trial, be cured by a costs
order.
[39] For all the reasons discussed, I am of the view that the application to amend
should be refused, and the objection upheld. Given the egregious conduct of the
defendant represented by its attorney outlined in this judgment , I am of the view
that the defendant should incur the costs of this application, on an attorney and
own client basis. There is no reason why the plaintiff should be placed out of
pocket for this application.
D. ORDER
[40] In the circumstances the following order is granted:
1. The defendant’s application to amend is refused, and the objection is
upheld.
2. The defendant is to pay the costs of this application on an attorney and
own client scale, including costs of counsel.
_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
Appearances:
For plaintiff : S. Vivian SC
Instructed by: F. Biccari, Frank Biccari Attoneys
For defendant: P.S. Bothma
Instructed by C. Lombard, AC Lombard Attorneys