Shoprite Checkers (Pty) Ltd v The Trustees for The Time Being of The 3 Broten Trust (39386/2021) [2023] ZAGPJHC 130 (6 February 2023)

80 Reportability

Civil Procedure

Brief Summary

Civil Procedure — Amendment of pleadings — Application for amendment of particulars of claim — Applicant sought to amend summons to reflect correct description of defendants and to add further particulars — Respondent raised objections on grounds of vagueness and non-compliance with Uniform Rules of Court — Court held that the applicant must demonstrate no prejudice to the respondent and that the amendments facilitate the proper ventilation of the dispute — Objections dismissed, and leave to amend granted as no substantial prejudice would result.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an opposed interlocutory application for leave to amend pleadings, brought in terms of Rule 28(1) of the Uniform Rules of Court. The applicant, Shoprite Checkers (Pty) Ltd (the plaintiff in the main action), sought leave to amend its combined summons and particulars of claim that had been issued against the respondent, the trustees for the time being of the 3 Broten Trust (the defendants in the main action).

The procedural posture was confined to whether the proposed amendments should be permitted. The respondent delivered a notice of objection raising five substantive objections to the proposed amendments. The court was therefore required to determine whether the amendments should be allowed in the exercise of its discretion under Rule 28, having regard to the usual amendment principles, including prejudice.

The underlying subject-matter (as appears from the nature of the proposed amendments and objections) related to a claim in which issues of trustee citation in representative capacity, and the adequacy and clarity of the pleaded claim (including allegations of breach and quantification) were implicated. However, the court’s determination was limited to the amendability of the pleadings and did not decide the merits of the main action.

2. Material Facts

It was common cause that the applicant had delivered a notice of intention to amend and now sought leave to implement those amendments after objection. The amendment application was brought under Rule 28(1), and the court approached the matter on the basis that amendments may be sought and granted at stages before judgment, subject to discretion and absence of non-compensable prejudice.

The applicant sought, in substance, to amend the citation on the first page of the combined summons to reflect the description of the defendants in the summons heading, and to amend paragraph 2 of the particulars of claim to identify at least one trustee expressly “in his capacity as trustee of 3 Broten Trust”, together with further subparagraphs (2.2 to 2.4). The applicant also sought several further amendments to the body of the particulars of claim, including amendments to paragraphs 5.1, 5.2, 5.3, 6.2, 7.1, 7.4, and 8.2, and the insertion of additional annexures described as “POC 21”, “POC 2”, and “POC 2.3” in specified locations.

The respondent’s opposition proceeded on the basis that the amendments, if allowed, would cause procedural and pleading defects. On the first objection, the respondent contended that the proposed changes would effectively introduce and cite individuals as defendants without proper service and that a joinder application, rather than an amendment, was required. On the further objections, the respondent contended that the amendments would render the particulars of claim excipiable for vagueness and embarrassment, including alleged uncertainty in references to annexed documents, insufficiency of particularity regarding alleged breach, and inadequate particularisation of the calculation of the amount claimed.

The court treated the question of prejudice as material. It considered, in particular, whether the respondents would be prejudiced by the refinement of citation to trustees in representative capacities, and whether the amended pleading, read as a whole, would be susceptible to exception on the ground that it was vague and embarrassing.

3. Legal Issues

The central legal questions were whether the proposed amendments should be permitted under Rule 28, and specifically whether the respondent’s objections demonstrated that the amendments should be refused because they would cause prejudice or would result in a pleading that was excipiable, particularly as being vague and embarrassing.

The dispute primarily concerned the application of legal principles governing amendments to the pleaded material placed before the court (an application of law to the pleaded facts and procedural posture), rather than any resolution of the factual merits of the underlying commercial claim. The respondent’s objections also raised a legal-procedural characterisation issue, namely whether the proposed changes to trustee citation constituted the introduction of new parties requiring joinder and service, or whether they were properly treated as an amendment clarifying representative capacity.

A further legal issue was the applicable test for determining whether a pleading is vague and embarrassing, and in what manner such an objection to an amendment should be evaluated, including whether the alleged vagueness must go to the cause of action as a whole.

4. Court’s Reasoning

The court approached the matter from the premise that Rule 28(1) provides the mechanism for amendments of pleadings and documents (other than sworn statements) and that, notwithstanding the detailed procedure in the rule, a court retains a discretion to grant leave to amend at any stage before judgment. The judgment also referred to the principle (with reference to Rule 28(10)) that amendments may be permitted before judgment.

In addressing the governing standard, the court emphasised that it is trite that the party seeking the amendment bears an onus to establish absence of prejudice to the opposing party. The court endorsed and applied the principles summarised in Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (Tk GD), including that the court has a discretion; an amendment is not granted for the mere asking and must be explained; the amendment must present a triable issue; the modern tendency favours amendments enabling proper ventilation of disputes; mala fides precludes relief; and an amendment should not be refused where any injustice can be addressed by costs. The court also referred to the long-standing approach in Macduff and Co. (In Liquidation) v Johannesburg Consolidated Investment Co, Ltd 1923 TPD 310, emphasising that leave is ordinarily granted unless mala fides or non-compensable prejudice is shown.

On the respondent’s objection relating to trustee citation and alleged joinder, the court reasoned that there was no meaningful prejudice in permitting the applicant to clarify that trustees were cited in their representative capacities. The court noted that, even on the unamended citation, the trustees were already identified by name, albeit without stating that they were sued in their representative capacities. In the court’s view, the clarification did not introduce new parties in a manner requiring a joinder application, and the respondent’s objection was characterised as lacking merit. The court further treated it as trite that litigation involving a trust requires that trustees be cited in their representative capacities, not private capacities, and it relied on authority illustrating the importance of correct trustee citation, including BOE Bank, formerly NPS Boland Ltd v Trustees Knox Property Trust [1999] 1 All SA 425 (D), as well as the approach reflected in Tusk Construction Support Services (Pty) Ltd and Others v Independent Development Trust 2020 ZASCA 22.

In relation to the remaining objections based on vagueness and embarrassment, the court set out the applicable principle that an exception on that basis must be directed at the cause of action as a whole, rather than isolated passages, and that the question is whether the vagueness goes to the heart of the claim in a manner that leaves the defendant uncertain of the case to meet. In this regard, the court relied on Jowell v Bramwell-Jones and Others 1998 (1) SA 835 (W). Applying that approach to the proposed amendments read as a whole, the court found no merit in the contention that the amendments would render the pleading vague and embarrassing, and it rejected the respondent’s multiple grounds of objection on that basis.

The court further considered that permitting the amendments would facilitate the expeditious resolution of the dispute and aligned with the principle that amendments are generally allowed to ensure that the real issues are properly ventilated. The court was satisfied that the amendments would not cause prejudice or injustice to the respondents and accepted the explanation tendered by the applicant as sufficient to justify the amendments sought.

5. Outcome and Relief

The court granted the application for leave to amend. It ordered that leave be granted to amend the applicant’s particulars of claim in accordance with its Rule 28(1) notice dated 19 October 2021 (annexed to the application).

The respondent was ordered to pay the costs of the amendment application on the party and party scale.

Cases Cited

Euro Shipping Corporation of Monrovia v Minister of Agriculture & Others 1979 (2) SA 1072 (C)

Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (Tk GD)

Macduff and Co. (In Liquidation) v Johannesburg Consolidated Investment Co, Ltd 1923 TPD 310

Transec (Pty) Ltd v The Premier of the Province of the Eastern Cape (416/96) [1998] ZAECHC 4 (16 February 1998)

Trans Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and Another 1967 (3) SA 633 (C)

Rosenberg v Bitcoin 1935 WLD 115

Cross v Ferreira 1950 (3) SA 446 (C) at 447

Goolman Ally Family Trust t/a Textile Curtains & Trimmings v Textiles Curtains and Trimmings (Pty) Ltd 1989 (4) SA 985 (C) at 998D–E

Van der Westhuizen v Van Sandwyk 1996 (2) SA 498 (W)

BOE Bank, formerly NPS Boland Ltd v Trustees Knox Property Trust [1999] 1 All SA 425 (D)

Tusk Construction Support Services (Pty) Ltd and Others v Independent Development Trust 2020 ZASCA 22

Jowell v Bramwell-Jones and Others 1998 (1) SA 835 (W) at 905E–H

Legislation Cited

General Law Amendment Act 50 of 1956, section 6

Rules of Court Cited

Uniform Rules of Court, Rule 28(1)

Uniform Rules of Court, Rule 28(10)

Uniform Rules of Court, Rule 18(4)

Held

The court held that the proposed amendments fell within the scope of Rule 28 and that, in the exercise of the court’s discretion, they should be permitted because the respondent had not demonstrated prejudice that could not be cured by an appropriate costs order.

The court held further that clarifying the citation of trustees in their representative capacities did not, on the facts before it, necessitate a joinder application, particularly where the trustees had already been cited by name and the amendment served to regularise the representative citation required in litigation against a trust.

The court held that the respondent’s objections based on the contention that the amended particulars would be vague and embarrassing were not established. It applied the principle that vagueness and embarrassment must be assessed with reference to the cause of action as a whole, and found that the proposed amended pleading, read as a whole, did not justify refusal of the amendments.

LEGAL PRINCIPLES

The judgment applied the principle that the granting of an amendment under Rule 28 is a matter of judicial discretion, exercised in accordance with established considerations including a satisfactory explanation for the amendment, the absence of mala fides, and whether the amendment raises a triable issue and facilitates the proper ventilation of the real dispute between the parties.

It reaffirmed that the party seeking an amendment bears the onus to show that the amendment will not cause the opponent prejudice amounting to an injustice that cannot be compensated by a costs order.

It applied the principle that, in litigation involving a trust, trustees must be cited in their representative capacities, and that correcting or clarifying citation may properly be achieved by amendment where it does not introduce non-compensable prejudice.

It applied the principle that an objection grounded on the assertion that a pleading is vague and embarrassing must go to the cause of action as a whole and must be of such a nature that the opposing party cannot reasonably be expected to plead because it does not know the case it must meet.