REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
( l) REPORT ABLE: NO
(2) OF INTEREST TO OTHEOTHER JUDGES: NO
(3) REVISED: NO
Date: 23 February 2026
Case Number: A2022-027541
In the matter between:
BEST DRIVE HOLDINGS (PTY) LTD
NV CAPITAL (PTY) LTD
First Appellant
Second Appellant
and
MARTIN HENRY LEWIS Respondent
Heard:
Delivered:
02 February 2026
23 February 2026 - This judgment was handed down
electronically by circulation to the parties' representatives via
email, by being uploaded to CaseLines, and by release to SAFLII.
The date and time for the hand-down is deemed to be 10:30 on
23 February 2026
ORDER
(1) The appeal is dismissed.
(2) The appellants are ordered to pay the costs of the appeal, including the
costs of counsel on scale C, if such costs have been incurred on that scale,
otherwise on such lesser scale as may be applicable.
JUDGMENT
Coram: Dlamini J and Marais AJ (Twala J dissenting)
Background
[1] This is an appeal to the Full Court, with leave from the court a quo, against the
decision in this court on 17 September 2024, when the appellants' application for
leave to amend in terms of rule 28(4) was dismissed with costs.
[2] The appellants are the plaintiffs in an action instituted in this court against the
respondent, who is the defendant in the action, seeking payment of the sum of
R2 million lent and advanced , plus R9 million in interest.
[3] The appellants ' action against the defendant is based on a loan agreement
concluded on 25 June 2019 ("the 2019 agreement ") between the appellants and
a company that is now in final liquidation ('the principal debtor"), as well as a
deed of suretyship concluded between the appellants and the respondent on 25
July 2018.
[4] In terms of the 2019 agreement:
a. The loan amount was R9 million.
b. The loan amount was payable to the principal debtor by 30 June 2019, and
the effective date of the agreement would be 1 July 2019, when repayments
of R 1 million per month would commence.
c. Interest was payable at the rate of R1 million per month for a period of nine
months.
[5] In the deed of suretyship, the respondent bound himself as surety and co
principal debtor in favour of the appellants for the liability of the principal debtor
in terms of a loan agreement concluded between the appellants and the principal
debtor. The "loan agreement " is not defined in the deed of suretyship, but
reference was made in this regard in the particulars of claim to a preceding loan
agreement which was concluded, also during 2018. It is common cause that the
suretyship referred to the 2018 agreement.
[6] The respondent raised an exception that the particulars of claim failed to disclose
a cause of action, on the basis that the plaintiff failed to show that the deed of
suretyship concluded in 2018 at the time the 2018 loan agreement was
concluded, has any bearing on the loan agreement that was concluded in 2019,
and consequently failed to show that the respondent is liable as surety in relation
to the 2019 agreement.
The proposed amendment
[7] The appellants do not concede that the exception was well taken , but they have
nonetheless given notice of their intention to amend their particulars of claim in
accordance with Rule 28(1) on the following basis:
a. It was further alleged that the 2019 loan agreement was a written
amendment to a preceding loan agreement concluded between the
plaintiffs and the principal debtor on or about 2 August 2018 ("the initial loan
agreement"). A true copy of the initial loan agreement was attached.1
b. The amendment of the initial loan agreement by the conclusion and terms
of the loan agreement was said to be in accordance with the terms of clause
1 As a proposed paragraph 5A.
12.3 of the initial loan agreement and arose in the circumstances plec1ded
in (amended) paragraphs 5 and 5.1 to 5.3.2
c. The proposed new paragraph 5.1 is to read that the principal debtor
approached the plaintiffs voluntarily and of free choice, requesting the roll
over of R7 000 000, 00 [which was due and payable under the initial loan
agreement (prior to its amendment as aforesaid) on 30 January 2019] to
the loan agreement and the additional advance of R2 000 000, 00 for the
purpose of funding another mining project opportunity, on the basis that the
roll-over amount of R7 000 000 , 00 and the additional advance of R2 000
000, 00 would make up the amended loan amount of R9 000 000, 00 under
the loan agreement.3
d. The appellants then proposed to allege that the principal debtor
"accordingly" did not repay the R7 million on 30 January 2019, since the
sum was rolled over to the (2019) loan agreement as agreed and the
repayment date and repayment terms, amongst others, of the initial loan
agreement were amended in accordance with the terms of the (2019) loan
agreement. 3
e. A proposed amendment paragraph 6 stated that the appellants performed
their joint obligations in terms of the (2019) loan agreement by inter a/ia
advancing the additional R2 million to the principal debtor, thereby
increasing the total amount of the principal debtor's indebtedness to R9
million.
f. In addition to the existing allegations regarding the deed of suretyship
between the appellants and the principal debtor, the appellants seek to
allege further that in terms of clause 4.3.3 of the deed of suretyship it was
agreed that the appellants and the principal debtor may at all times vary
any or all of the terms and conditions of the initial loan agreement as they
may deem necessary without prejudice to any of the rights of the appellants
2 Proposed paragraph 5A.1.
3 Proposed paragraph 6A.
against the respondent and that any such variations shall vary the
obligations of the respondent owing to the appellants.
g. A proposed amended paragraph 11 states that by reason of clause 4.3.3 of
the suretyship and the subsequent amendment of the initial loan agreement
(i.e. the 2018 agreement) , the respondent remained bound as surety for the
due performance of the principal debtor's obligations in terms of the 2019
loan agreement.
h. It was emphasised in a proposed paragraph 11 .1 that the respondent is
liable in respect of the 2019 loan agreement since it is allegedly an
amendment of the 2018 loan agreement.
i. The appellants now seek to claim R9 million capital, plus a further R9 million
interest. The court a quo assumed this to be a slip of the pen, but before us
appellants ' counsel confirmed that this was not an error and that this is
indeed what the appellants seek to claim by way of the amendment.
The respondent's objections to the proposed amendments
[8] The respondent objected to the proposed amendment, which resulted in an
application for leave to amend in terms of rule 28(4). This application was
dismissed by the court a quo, and it is against this dismissal that this appeal lies.
[9] The respondent's objections were broadly as follows:
a. That the 2019 agreement was clearly not an amendment or variation of the
2018 agreement as:
i. The 2019 agreement makes no reference to the 2018 agreement;
ii. The 2019 agreement makes no reference to the fact that it is a
variation of the 2018 agreement ;
iii. The 2019 agreement makes no reference or provides any details as
to in what respects the 2018 agreement is varied;
iv. The 2019 agreement has an effective date of 1 July 2019, whereas
the effective date in the 2018 agreement was 25 July 2018;
v. The 2019 agreement states that the loan amount would be transferred
by 30 June 2019, while the 2018 agreement stated that the loan
amount would be transferred on 25 July 2018;
vi. The 2019 agreement states that the loan amount was R9 million,
whereas the loan amount in the 2018 agreement was R5 million;
vii. Paragraph 11.6 of the 2019 agreement contains a whole agreement
clause, which provides that the agreement contains the entire
agreement between the parties regarding the subject matter of the
agreement and that no party shall be bound by any undertakings,
representations, warranties, promises or the like not recorded in the
agreement;
viii. The clause further provides that the agreement supersedes all prior
agreements , representations, communications , negotiations , and
understanding between the parties concerning the subject matter of
this agreement;
ix. the 2019 agreement was a novation, and not a variation of the 2018
agreement.
x. The 2019 agreement makes no reference to a deed of suretyship,
whereas the 2018 agreement does make such reference.
b. Reference is made to another action instituted by the appellants against the
respondent on the 2018 agreement against the respondent for payment of
the amount of R7 million, which action is pending after a judgment for R7
million was rescinded.
c. It is stated that if the 2019 agreement is a variation of the 2018 agreement ,
that there is a /is pendens.
[1 O] The objection concludes with the contention that because the proposed
amendment is unsustainable , the objection should be sustained.
The law relating to applications for leave to amend
[11] The principles applicable to applications for amendments are set out in Erasmus
Superior Court Practice in the discussion of rule 28. We are indebted to the
authors for the helpful exposition and the authorities cited in the footnotes . These
principles are as follows:
a. A court hearing an application for an amendment has a discretion whether
or not to grant it, a discretion which must be exercised judicially .
b. The primary object of allowing an amendment is to obtain a proper
ventilation of the dispute between the parties, to determine the real issues
between them, so that justice may be done.
c. The general approach to be adopted in applications for amendment has
been set out in numerous cases. The practical rule is that an amendment
will not be allowed if the application to amend is made ma/a fide or if the
amendment will cause the other party such prejudice as cannot be cured
by an order for costs and, where appropriate, a postponement.
d. The following statement by Watermeyer J in Moolman v Estate
Moolman4 has frequently been relied upon:
'[T]he practical rule adopted seems to be that amendments will always
be allowed unless the application to amend is ma/a 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 it is sought to amend was filed.'
e. Save in exceptiona l cases, where the balance of convenience or some such
reason might render another course desirable, an amendment ought not be
4 Moo/man v Estate Moo/man 1927 CPD 27 at 29
allowed where its introduction into the pleading would render such pleading
excipiable . In other words, the issue proposed to be introduced by the
amendment must be a triable issue.5 A triable issue is one (a) which, if it
can be proved by the evidence foreshadowed in the application for the
amendment, will be viable or relevant; or (b) which, as a matter of
probability, will be proved by the evidence so foreshadowed .6 If the
plaintiff's particulars of claim do not disclose a cause of action, an
amendment of the defendant's plea thereto would be an exercise in futility.
f. It is stated that the court has on various occasions refused to allow an
amendment where , even if it were allowed, the amending party would still
have no prospect of success on the amended pleading. An amendment
was refused where the new ground of action sought to be imported could
be proved only by evidence which would have been inadmissible .7
[12] During the argument in this matter, the appellants accepted that the crucial
inquiry is whether the amendment is based on a triable issue, in the sense that
the evidence foreshadowed by the appellants ' application supports the
amendment. Counsel for the appellants referred to the judgment of Opperman J
in The Standard Bank of South Africa Limited v 24 Wentworth Village (Pty) Ltd, 8
where the learned judge held that the issue proposed to be introduced by the
amendment must be a triable issue. A triable issue is one that, if proved by the
evidence foreshadowed in the application for the amendment , will be viable or
relevant, or, as a matter of probability , will be proved by the evidence so
foreshadowed . However, an application for leave to amend is not designed to
resolve a triable issue; it need only traverse a viable or relevant and triable issue.
[13] Counsel was at pains to point to evidence in the appellants ' founding affidavit
that allegedly supported the amended cause of action. Whether the evidence
that allegedly supported the amended cause of action. Whether the evidence
" Tran:s-oraKensoerg Bank ua (unaer Juaicial Management) v Combined Engineering (Pty)
Ltd 1967 (3) SA 632 (D) at 641A; Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) at
565H-J ; Barnard v Barnard 2000 (3) SA 741 (C) at 754F.
6 Consol Ltd tla Consol Glass v Twee Jonge Gezel/en (Pty) Ltd (2) 2005 (6) SA 23 (C) at 36I-J
7 Lenferna v Jerome 1925 (1) PH F20 (D)
8
The Standard Bank of South Africa Limited v 24 Wentworth Village (Pty) Ltd 2021 JDR I 555
(GJ) par [1 5]
indeed supported the amendment will be discussed hereunder . The point is that
this matter turns on whether the foreshadowed evidence supports the proposed
amendment and is sustainable.
Discussion
Novation
[14] The objection based on the statement that the 2019 agreement was a novation
of the earlier agreement was abandoned by the respondent during the hearing
of the appeal and need not be considered.
Lis pendens
[15] The objection of /is pendens may have some merit. As the particulars of claim
stand at the moment, the appellants are not claiming anything agreed upon in
the 2018 agreement and /is pendens does not arise. In terms of the proposed
amendment , the appellants seek to claim R9 million capital plus R9 million
interest. Included in the R9 million capital is R7 million agreed upon in terms of
the 2018 agreement which was allegedly "rolled over" to the 2019 agreement.
R7 million is claimed in both actions for exactly the same alleged debt. The fact
that this is claimed in one action under the 2018 agreement, and in the present
action under the 2019 agreement , does not matter. On the appellant's versicm, it
is the same debt which was transferred to the 2019 agreement.
[16] This will potentially only be a partially successful defence against the proposed
claim, as there is a further R2 million capital and R9 million interest claimed,
which is not covered by the /is pendens defence .
[17] Counsel for the appellants argued that due to the discretionary nature of a plea
of /is pendens it would be inappropriate for the court dealing with the amendment
to deal with it and contended that this will be the function of the trial court to
exercise a discretion ba~ed on the evidence before the court. In this regard
counsel referred to Century Civils CC v Calsicrete Brickworks (Pty) Ltd in which
reference was made to Loader v Durst Bros (Pty) Ltd where Roper J held that a
plea of /is alibi pendens does not have the effect of an absolute bar to the
proceedings in which the defence is raised. The court intervenes to stay one or
other of the proceedings , because it is prima facie vexatious to bring two actions
in respect of the same subject matter. It follows that a plea of /is pendens merely
stays one or other of the proceedings brought in respect of the same matter and
does not require the other action to be dismissed. The balance of convenience
and of equity requires that the question of /is pendens be dealt with in the main
action. It will be convenient for the respondent to plead /is pendens either in the
main action or the second action.
[18] We are, consequently , of the view that the fact that there is ostensibly a \ialid
plea of /is pendens available to the respondent if the amendment is allowed, is
not a bar against the amendment. The trial court may potentially rule that the
action in the present matter should proceed and that the other action should be
stayed. Where the current action will, based on the proposed amendment , deal
more widely with the issues between the parties (including the fact that the 2018
agreement is now alleged to have been varied by the 2019 agreement), a trial
court may allow the present action to proceed (assuming the amendment is
allowed), rather than to stay proceedings.
The question whether the amendment is sustainable I raises a triable issue I
based on inadmissible evidence
(19] The general objection that the proposed amendment is unsustainable, which, in
our view, is intertwined with the other grounds of objection, remains to be
considered .
(20] The appellants argued that the court a quo went too far in interpreting the
agreements and reaching the conclusions it did. In this regard, we are mindful
that a court considering an amendment to the pleadings should refrain from
usurping the role of the trial court and deciding a matter as if all the evidence
were before the court. It is particularly dangerous for a court to interpret
were before the court. It is particularly dangerous for a court to interpret
agreements where a variety of factors may, based on the evidence , play a role.
[21] But we do not deem it necessary to make a finding on the correctness of the
court a quo 's reasoning in this regard. Before us, the matter was approached on
the basis of the evidence that was foreshadowed by the appellants in the
founding affidavit and pertinently relied upon by their counsel. There was no
contention by the appellants that the agreements must be interpreted in any
manner other than what is conveyed by the plain language of the agreement.
[22] As set out above, in the exercise of the court's discretion, the court must decide
whether the application for amendment is bona fide and whether the proposed
amendment is sustainable on the evidence foreshadowed in the application for
amendment. An amendment will also not be allowed if the proposed new cause
of action can be proven only through inadmissible evidence.
[23] A plain reading of the 2018 agreement , relied upon by the appellants in the
amendment, reveals the following:
a. The loan amount was R5 million.
b. The loan amount was payable to the principal debtor by the effective date
of 25 July 2018; and
c. Interest was payable at the rate of R500 000.00 per month for a period of
six months .
[24] A plain reading of the 2019 agreement shows that R9 million capital had to be
advanced to the principal debtor in future, i.e. by 30 June 2019.
[25] As part of the proposed amendment (and the evidence foreshadowed) , the
appellants seek to allege that, although the 2019 agreement expressly provided
that a capital amount of R9 million would be advanced to the principal debtor on
30 June 2019, this would not be done. Instead, the R9 million mentioned in the
2019 agreement would have consisted of R? million "rolled over" from the 2018
agreement , plus a further capital advance of R2 million. This is alleged to be a
variation of the 2018 agreement.
[26] Based on the evidence foreshadowed by the appellants , there is no indication
that the appellants paid any amount in excess of the R5 million agreed upon
under the 2018 agreement. Accordingly , it must be accepted that only R5 million
was actually lent and advanced, not R7 million. Anything in excess of R5 million
under the 2018 agreement, on the evidence, could only be interest. During
argument, counsel for the appellants obliquely mentioned that a claim may be
formulated in the future based on an additional R2 million having been advanced
under the 2018 agreement , but there is no evidence on record to support such a
claim. Consequently , that possibility should be discounted.
[27] On the facts presented by the appellants, the inclusion of the amount of R5
million (which had already been paid over in 2018) in the capital amount of R9
million that had to be paid over in 2019 was a fiction the parties clearly had no
intention of implementing. It was clearly not an amendment to the 2018
agreement.
[28] It is also trite law that interest never loses its identity as interest, even if the
interest is capitalised by agreement.9 On the foreshadowed evidence, the alleged
conversion of R2 million interest in terms of the 2018 agreement into capital to
be advanced in terms of the 2019 agreement in future , can also be nothing else
than a simulated agreement. No effect would have been given to this by the
parties, and the allegation of a variation of the 2018 agreement in this regard is
similarly untenable.
[29] Despite these realities appearing from the appellants' own version, counsel for
the appellants persisted in the contention that the 2019 agreement was a
variation of the 2018 agreement and that the appellants will be entitled to adduce
extrinsic evidence at trial to shed light on its interpretation.
[30] In this regard, counsel relied on the judgment of the Constitutional Court in
University of Johannesburg v Auckland Park Theological Seminary and
Another10 where it was held that the integration rule does not prevent a party
leading extrinsic evidence in respect of the interpretation of the agreement , and
that the appellants will be entitled to lead such evidence during the trial.
[31] But the judgment of the Constitutional Court regarding the interaction between
the integration rule and the prohibition against extrinsic evidence, and the
the integration rule and the prohibition against extrinsic evidence, and the
9 See Standard Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd (In Liquidation) 1998
(1) SA 811 (SCA) at 828 I - J.
10 University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6) SA
1 (CC)
principles of contractual interpretation, must be properly understood. The court
referred to previous authority holding that the parol evidence rule has two
components, i.e., an integration facet and an interpretation facet. The integmtion
facet defines the limits of the contract, and the interpretation facet addresses the
interpretation of the agreement. In par. 92 of the judgment, the court held as
follows:
"The integration facet of the parol evidence rule relied on by the
Supreme Court of Appeal is relevant when a court is concerned
with an attempted amendment of a contract. It does not prevent
contextual evidence from being adduced. The rule is
concerned with cases where the evidence in question seeks
to vary, contradict or add to (as opposed to assist the court
to interpret) the terms of the agreement. If UJ had sought to
adduce evidence to show the court that the parties had
intended to include a pactum de non cedendo, but had
failed to do so, this part of the parol evidence rule would
have precluded UJ from seeking to add this term to the
contract by means of extrinsic evidence. But it is quite clear
that UJ did not seek to adduce its evidence for that reason. My
reading of its judgment is that the Supreme Court of Appeal's
invocation of the parol evidence rule in this case was influenced
by its broader view that the whole agreement clause in the lease
prevented the High Court from having regard to the contextual
evidence adduced by UJ. I have already found that view to have
been incorrect. It follows that the parol evidence rule was not an
obstacle to the evidence being admitted."
[32] The current state of t he law is, therefore, that the integration rule does not
preclude extrinsic evidence from being led to shed light on the interpretation of
the agreement. But if the e xtrinsic evidence's purpose is to vary, contradict or
add to a w ritten agreement, the integration rule prevents such evidence from
being led.
[33] The evidence relied on by the appellants clearly has the effect of varying,
contradicting, or detracting from the express terms of the 2019 agreement.
[34] In particular, to the extent that the 2019 agreement, in express terms, provides
that the R9 million loan amount would be paid by 30 June 2019, the
foreshadowed evidence and the proposed amendment seek to put forwa1 d a
conflicting agreement that such amount would not be paid - only R2 million would
be paid in the future.
[35] It is conceivable that certain elements of the 2019 agreement could have been
intended as a genuine variation of the 2018 agreement, such as varied
repayment terms for the original loan and interest, an additional loan amount,
and additional interest terms. But this was not expressed in the 2019 agreement.
Instead of providing that there would be a variation of the repayment terms of the
previous RS million loan and interest thereon, the 2019 agreement expressly
provides for repayment terms in respect of a R9 million loan to be disbursed on
a future date. The proposed amendment depends entirely on a version of the
agreement that is at variance with the express terms of the agreement, without
a claim for rectification. The same goes for the additional interest containf>d in
the 2019 agreement, to the extent that such interest pertained to amounts that
were due in terms of the 2018 agreement.
[36] As to the additional R2 million loan and interest thereon, the 2019 agreement did
not state that this was a variation of the 2018 agreement. It simply provides for a
loan of R9 million. To the extent that the appellants seek to allege that the
additional R2 million capital advance included in the R9 million was a variation of
the 2018 agreement, this is at odds with the express terms of the agreement. It
seeks to read something into the agreement that is simply not there.
[37] Upon proper analysis, based on the foreshadowed evidence, the 2019
[37] Upon proper analysis, based on the foreshadowed evidence, the 2019
agreement evidently did not reflect the parties' intention correctly. Instead of
seeking rectification of the agreement, the appellants seek to put forward a
different version of the agreement by means of extrinsic evidence.
[38] This extrinsic evidence is clearly not merely evidence supporting the
interpretation of the agreement but is contrary to the parol evidence rule and
inadmissible.
[39] Confronted with this reality, counsel for the appellants submitted that this was
irrelevant because the appellants are allegedly not attempting to enforce this
contradictory version of the 2019 agreement. This submission is patently
incorrect and must be rejected. The appellants are undoubtedly attempting to
enforce the proposed agreement.
[40] To the extent that it is suggested that the 2019 agreement was a variation of the
2018 agreement, this is not supported by the evidence foreshadowed and is
unsustainable. The proposed amendment is also based on inadmissible extrinsic
evidence . It ought to have been refused.
Reality check: will the appellants be deprived of justice if the amendment is
refused?
[41] In Essence Lading CC v lnfiniti Insurance Ltd and Another 11, it was held in the
context of an amendment to the pleadings that the point of departure is that
everyone , in terms of s 34 of the Constitution 12 , has the right to have any dispute
that can be resolved by the application of law decided in a fair public hearing
before a court. Section 173 provides that the High Court has the inherent power
to protect and regulate its own process and to develop the common law,
considering the interests of justice. Courts are, therefore, constitutionally
enjoined to approach matters like this on the basis that fairness and justice must
be promoted.
[42] The question arises as to whether refusing the amendment will comply with the
constitutional imperative of a fair and just process and whether an injustice will
not be done as a result of that refusal. Refusing an amendment may potentially
close the doors of the cou rt to a litigant and cause inju $ tice. Conseq1.1ently,
refusing an amendment must be justified in law.
11 Essence Lading CC v lnfiniti Insurance Ltd and Another 2024 (2) SA 407 (GJ) par {25] to (26]
12 The Constitution of the Republic of South Africa, 1996
[43) In the present matter, we are of the view that the refusal to allow the amendment
was justified in law and that the appellants were obliged to suffer the
consequences. Furthermore, this is not the end of the road for the appellants, as
alternative causes of action are available to them, provided that such causes of
action are properly pleaded, prima facie supported by the appellants' evidence,
and not based on inadmissible evidence.
[44) Consequently , we are of the view that no injustice was done due to the refusal of
the amendment.
Conclusion
[45) The court a quo's order in refusing the amendment was correct, and the appeal
must be dismissed.
Costs
[46) The costs of this appeal should follow the result.
[47] The appellants should be ordered to pay the costs of the appeal, including the
costs of counsel, on Scale C if counsel's costs have been incurred on that scale;
otherwise, on such lesser scale as may be applicable.
Order
[48) In the circumstances the following order is granted:
(3) The appeal is dismissed.
(4) The appellants are ordered to pay the costs of the appeal, including the
costs of counsel on scale C, if such costs have been incurred on that scale I
otherwise on such lesser scale as may be applicable.
Twala J
DLAMINI JE
Judge of the High Court of South Africa
Gauteng Division, Johannesburg
It
MARAIS D
Acting Judge of the High Court of South
Africa
Gauteng Division, Johannesburg
[49] I have had the pleasure of reading the judgment of my colleagues. Regretfully I
cannot concur with it. I agree with the background facts to this case which are
common cause as mentioned in the judgment of the majority. However, I hold
the view that the appeal should be upheld, and the amendment be granted with
the respondent to pay the costs on scale C.
[50] This is an appeal against the judgment of Graves AJ in the court a quo,
dismissing the appellants' application for leave to amend their particulars of claim
with costs. The appellants (plaintiffs in the action) sought to amend their
particulars of claim to plead that the loan agreement concluded on 25 June 2019
("the 2019 agreement ") was a written amendment of the earlier loan agreement
concluded on 2 August 2018 ("the 2018 agreement';. The respondent
(defendant) opposed the amendment on the grounds that the 2019 agreement
constituted a novation of the 2018 agreement, and that the suretyship signed by
the respondent in 2018 did not cover liabilities under the 2019 agreement. The
court a quo refused the amendment , holding that the amended pleading would
be excipiable.
[51] The legal principles governing amendments are well established. It is trite that
amendments are to be granted freely , unless they are sought in bad faith or
would cause an injustice that cannot be cured by a costs order. The modern
tendency is to allow amendments that facilitate the proper ventilation of disputes.
[52] In Affordable Medicines Trust and Others v Minister of Health and Another 13 the
Constitutional Court confirmed the principles governing the granting or refusal of
amendments which were laid down in Commercial Union Assurance Co Ltd v
Waymark No14 and stated the following:
"The principles governing the granting or refusal of an amendment have been
set out in a number of cases. The practical rule that emerges from these cases
is that amendments will always be allowed unless the amendment is ma/a
fide (made in bad faith) or unless the amendment will cause an injustice to the
other side which cannot be cured by an appropriate order for costs, or "unless
the parties cannot be put back for the purposes of justice in the same position
as they were when the pleading which it is sought to amend was filed." These
principles apply equally to a Notice of Motion. The question in each case,
therefore , is what do the interests of justice demand."15
[53] In Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH16 the
Constitutional Court stated the following:
"I do not agree. The misapplication of law ordinarily occurs when a legal stanrlard
that is correctly stated and adopted is then applied to the facts so as to derive a
conc1us1on that cannot be sustained. So, for example, a crime that requires
13 (CCT27/04 ) (2005] ZACC 3; SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005)
14 1995 (2) SA 73 (TK) at 76D-761
14 1995 (2) SA 73 (TK) at 76D-761
15 Id para 9
16 2024 (1) SA 331 (CC)
intention when the facts merely support negligence cannot sustain a conviction
because the application of the law to the findings of fact does not support the
conclusion that the accused is guilty of the crime. Here, though, the
Commissioner of Patents, having cited the well-known principles of law relevant
to the application before her, then pronounced and adopted an entirely different
and incorrect standard: the interests of justice. That is apparent from the salient
passage of her judgment quoted above. It is also apparent from the reasoning
adopted by the Commissioner of Patents to arrive at her conclusion. There is no
trace in that reasoning that the Commissioner of Patents adopted the relevant
legal principles that she had referenced. Nothing is to be found of the permissive
principle that amendments are always allowed, unless they are sought in bad
faith or would cause an injustice that cannot be remedied by an award of costs.
Rather, the Commissioner of Patents adopted and applied a distinct and
incorrect standard: the interests of justice. She then exercised her discretion to
refuse the application to amend, by recourse to that incorrect standard.17
The adoption of an incorrect legal standard to decide an application to amend is
to make an error of law. It is not a misapplication of law because the decision
does not proceed from a correct legal premise to an incorrect conclusion as a
result of a failure properly to apply the law to the relevant facts. And it is an error
of law of no small consequence . The legal principles that are restated
in Affordable Medicines reflect the constitutional right to have a dispute resolved
by the application of law before a court. This entails the right of a litigant to frame
the dispute that requires resolution, and in the present matter, to formulate a
defence. Hence, the importance of the permissive principle, to which I have
referred. "18
[54] However, an amendment that would render a pleading excipiable may be
referred. "18
[54] However, an amendment that would render a pleading excipiable may be
refused. The test is whether the amended pleading would clearly be excipiable .
If it is merely arguable that the pleading might be excipiable, the amendment
should be allowed and the excipiability issue left for determination by the trial
court.
171d para 64
18 Id para 65
[55] In Crawford-Brunt v Kavnat19, dealing with an amendment to a plead ing, stated
the following :
"In Cross v Ferreira it was laid down that, save in exceptional cases where the
balance of convenience or some such reason might render another course
desirable, the Court will not allow an amendment to a pleading if the plec1ding
as amended would be excipiable. It seems clear, however, both from a reading
of this case and of subsequent cases in which Cross v Ferreira has been
referred to, that such an amendment will only be refused on the ground that the
amended pleading would be excipiable if it is clear that the amendment
would obviously render the pleading excipiable. The operative words in the
judgment in Cross v Ferreira at p. 449 are 'would be excipiable' and not 'may
be excipiable'. If the pleading would appear to be possibly open to exception or
even if the Court is of opinion that the question of whether or not the pleading
is excipiable is arguable, it would seem to be the more correct course to allow
the amendment."
[56] Where the objection to an amendment turns on the inter pretation of a contract ,
the court should be particularly cautious. Interpretati on is often
context-dependent , and evidence of surrounding circumstances may be
admissible to clarify ambiguity . A s a rule , a court dealing with an amendment is
not the appropriate forum to settle questions of interpretation , because evidence
may be led at tria l to cast light on the correct meaning of the contract. Thus , as
a genera l rule, courts are reluctant to decide upon exception question concerning
the interpretation of a contract.
[57] In Heafiel d v Rode/ Financial Services (Pty) u&0 the court quoted with approval
the case of Myers v Abramson wherein the following was stated:
"In Magnum Simplex International (Pty) Ltd v MEG Provincial Treasury,
Provincial Government of Limpopo (2018] ZASCA 78 para 9, the court stated
that before an amendment is granted, there must be some explanation why
that before an amendment is granted, there must be some explanation why
there is a wish to amend if a case has already been made out in the pleadi'lgs.
19 1967 (4) SA 308 (C) at 310F-3118).
20 (2022] ZAKZDHC 26
As set out in Trans-Drakensberg, an explanation must be provided why there
is a wish to change or add to the pleadings where a case is already made out.
The applicant must show prima facie that a triable issue is being introducedln
Myers v Abramson 1951 (3) SA 438 (C) at 449H, the court stated that since it
was permissible to allow the introduction of a new cause of action by way of an
amendment, there was no reason why amendments should be limited to
instances where there is some evidence to support the cause of action
contained in the proposed amendment." 21
[58] It should be recalled that the amendment was triggered by an exception to the
plaintiff's particulars of claim to the summons and the respondent has not yet
pleaded thereto. Therefore , in my view, there is no prejudice to be suffered by
the respondent which cannot be cured by a costs order should the amendment
be granted. Additionally, there is no evidence before this court that the parties
concluded the 2019 agreement with no intention to give effect thereto. This is
purely speculative at this stage since the evidence to be led at the trial, which is
not before this court, may prove otherwise. The admissibility or inadmissibility of
the extrinsic evidence should be left to the trial court and not this court dealing
with motion proceedings.
[59] The golden thread that runs through the authorities quoted above is that the
amendment should be granted in order to allow the parties to ventilate all the
issues at the right forum, which is the trial court. It is not for this court to determine
the interpretation of the two agreements at this stage and to evaluate the
evidence foreshadowing the issues on motion proceedings which are to be
determined at the trial after extrinsic evidence has been led to support and prove
the link between the two agreements. It is my respectful view therefore that, by
doing so, the majority judgment has overstepped the mark and is therefore over
reaching.
doing so, the majority judgment has overstepped the mark and is therefore over
reaching.
[60] Whether the quantum of the claim is RQm or R 11 m, it is a matter for
determinat ion by the trial court after hearing evidence from the parties. It is not
desirable for a court in motion proceedings to engage in determining issues
21 Id para 29
which are disputed facts between the parties. The triable issue which is
foreshadowed by the evidence of the amendment is that the 2019 agreement is
an amendment of the 2018 agreement. Further, extrinsic evidence will be lead at
the trial for the court to determine whether the two agreements are linked to each
other and in what respect. That is where the interpretative process will occur and
not in the motion court which is incapable of resolving disputes of fact on the
papers.
[61] In Trans-Drakensburg Bank Ltd v Combined Engineering (Pty) LtcJ22 the court
stated the following regarding amendments:
'The amendment must be bona fide and if it is, it will be granted, especially
where the effect of refusing it would again bring the same parties before the
same court on the same issue"
"Having already made his case in his pleadings, if he wishes to change or add
to this he must explain the reason and show prima facie that he has something
deserving of consideration, a triable issue, he cannot be allowed to harass his
opponent by an amendment which has no foundation. He cannot place on
record an issue of which he has no supporting evidence where evidence
requires or save perhaps in exceptional circumstances, introduce an
amendment which would make the pleading excipiable."
[62] There is no evidence before this court that the appellant is malicious in its quest
to effect t he amendment to its pleading. Further, as indicated above, the triable
issue which is foreshadowed by evidence in the founding affidavit is the interlink
of the two agreements and proof thereof can only be determined after extrinsic
evidence has been led at the trial. Additionally, after the abandonment of the
novation ground of objection by the respondent and the finding by the majority
judgment that the lis pendens issue should be determined at the trial, nothing
suggest that the amendment of the pleading is clearly excipiable as noted in the
authorities quoted above.
22 1967 (3) SA 632 (D) at 640 H-641
[63] It is unfathomable that the respondent raised several grounds of objection to the
amendment but according to the majority succeeded on only one and as a result
thereof the whole amendment should be refused. The basis upon which the
appeal is refused by the majority judgment is that the evidence foreshadowing
the amendment does not support that the 2019 agreement was a variation of the
2018 agreement and is therefore unsustainable and that the amendment is
based on inadmissible extrinsic evidence.
[64] It is my considered view that the determination of the interlink between the two
agreements is a matter of interpretation of both agreements by the trial court
before which extrinsic evidence will be led to ascertain the intention of the parties.
It is not open to this court to determine whether the extrinsic evidence is
admissible or not but that is in the domain of the trial court which has a wide
discretion in determining such issues.
[65] It is my respectful view that the refusal to grant the amendment deprived the
appellant of justice as guaranteed by section 34 of the Constitution of the
Republic of South Africa .23 The reality of the cases of this nature is to allow the
parties to ventilate the issues at the right forum and not to deprive the other
litigant the right to have his or her dispute resolved by the application of law
decided in a fair public hearing before the court. It is the appellant who would be
prejudiced by the refusal of the amendment, whereas its granting would not have
caused any harm or prejudiced to the respondent which could not be cured by a
costs order.
23 Act 108 of 1996
[66] Had I commanded the majority, I would have upheld the appeal and granted the
amendment with the respondent to pay the costs On Scale C.
~
TWALA ML
Judge of the High Court of South Africa
Gauteng Division, Johannesburg
APPEARANCE
For the Appellants : Adv J W Steyn
Email : steynjw@law.co.za
instructed by:
Email:
Adv WG Pretorius
wgpretorius@vodamail.co .za
LM DU TOIT ATTORNEYS INC.
marthus@lmdtlaw .co.za
For the Respondent: Adv SLP Mulligan
Email: smacky@absamail.co .za
Instructed by:
Email:
NIXON & COLLINS ATTORNEYS
law@nixon.co.za