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Superdrive Investments Limited (RF) v Adams (761/2018) [2023] ZAWCHC 171 (21 July 2023)

78 Reportability
Civil Procedure
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Brief Summary

Amendment of pleadings — Application for amendment of particulars of claim — Applicant sought to amend claims regarding a vehicle sale agreement after a settlement order — Respondent opposed, arguing that the settlement agreement was final and binding — Court to determine whether the amendment is justifiable in light of the existing settlement order and whether costs should be awarded for the withdrawn applications — Amendment allowed as it did not introduce a new cause of action and was necessary for resolving the dispute; costs awarded against the applicant for the withdrawn application.

Comprehensive Summary

Summary of Judgment


Introduction


The judgment concerned two interlocutory applications arising within an existing action: an application by the applicant/plaintiff, Superdrive Investments Limited (RF), for leave to amend its particulars of claim in terms of Uniform Rule 28(4), and an application by the respondent/defendant, Chantal Adams, for a costs order under Uniform Rule 41(1)(c) following the applicant’s withdrawal of earlier applications.


The underlying dispute originated in action proceedings in which the applicant sued the respondent for payment of an amount said to be due after cancellation of an instalment sale agreement relating to a 2014 BMW 320i. The credit transaction was stated to be subject to the National Credit Act 34 of 2005.


Procedurally, the matter developed through multiple stages. After the respondent defended and the applicant sought summary judgment, the parties concluded a settlement agreement (made an order of court). Subsequent non-compliance led to further applications including an application for judgment in terms of Rule 41(4) and later an application for rectification of the settlement agreement. Those applications were eventually withdrawn, prompting the respondent’s Rule 41(1)(c) costs application. Thereafter, the applicant delivered a notice of intention to amend its particulars of claim and, after objection, pursued leave to amend under Rule 28(4).


The general subject-matter of the dispute before the court in this judgment was not the merits of the credit dispute itself, but rather (i) whether an amendment to the pleadings was procedurally permissible given the existence of an extant settlement order, and (ii) who should bear the costs occasioned by the applicant’s withdrawal of its Rule 41(4) and rectification applications.


Material Facts


The applicant instituted action against the respondent for payment of approximately R418 608.43 (the judgment later refers to R419 608.43 in the proposed amended prayers), with interest and costs, allegedly arising from the cancellation of an instalment sale agreement for the purchase of a 2014 BMW 320i. It was common cause for purposes of these applications that the agreement was subject to the National Credit Act 34 of 2005.


The respondent defended the action on 27 February 2018, after which the applicant launched an application for summary judgment. The parties then concluded a settlement agreement on 29 March 2018, which was made an order of court on 16 April 2018.


The respondent failed to comply with the settlement order. On 26 October 2018, the applicant applied for judgment in terms of Rule 41(4). On 16 November 2018, judgment was granted in the applicant’s favour. The respondent brought an application for rescission under Rule 42(1)(a), alleging the judgment was erroneously granted, and disputed the correctness of the judgment amount in light of the settlement terms. The applicant conceded rescission, and on 12 March 2019 the judgment was rescinded; the Rule 41(4) application was postponed to the semi-urgent roll.


On 25 June 2019, the applicant launched an application for rectification of the settlement agreement. Both the Rule 41(4) application and the rectification application were enrolled on the semi-urgent roll and on 14 August 2019 the Judge President referred the matter to oral evidence, with the parties’ further conduct recorded. The parties did not comply with the order, and on 21 May 2020 the matter was removed from the roll with a view to settlement.


On 30 June 2022, the applicant delivered notices of withdrawal of both the Rule 41(4) application and the rectification application. The withdrawals were effected without the respondent’s consent and without a tender of costs. The respondent then brought an application in terms of Rule 41(1)(c) seeking an order compelling the applicant to pay the costs of the withdrawn proceedings.


Thereafter, on 27 July 2022, the applicant delivered a notice of intention to amend its particulars of claim in terms of Rule 28(1). The respondent alleged an objection was delivered under Rule 28(3) on 11 August 2022. The applicant’s proposed amendment substantially reformulated the relief sought, including prayers for correction (rectification) of a chassis number, cancellation, payment of a stated amount with interest and costs, and in the alternative, relief seeking return of the vehicle and postponement of the quantification of damages pending valuation and sale.


A key factual contention advanced by the applicant in support of amendment was that the settlement agreement had “expired” (allegedly on 5 September 2018) and that the respondent remained in possession of the vehicle without settling arrears. The respondent, in opposing the amendment, relied on the continued existence and legal force of the settlement order, which had not been set aside or varied, and contended that the proceedings had thereby been finalised.


Legal Issues


The court identified two central questions for determination.


The first issue was whether the applicant’s proposed amendment of the particulars of claim was legally permissible and justifiable given that the dispute had been settled by a settlement agreement made an order of court, which the respondent contended brought finality to the action.


The second issue was whether, following the applicant’s unilateral withdrawal of its Rule 41(4) and rectification applications without tendering costs, the applicant ought to be ordered to pay the respondent’s costs under Rule 41(1)(c).


These questions primarily concerned the application of legal principles to largely common-cause procedural facts, and involved the exercise of judicial discretion in relation to amendment of pleadings (in the context of finality and functus officio) and in relation to the costs consequences of withdrawal.


Court’s Reasoning


In considering the amendment application, the court set out the framework of Uniform Rule 28, including the mechanism for objection and the bringing of an application for leave to amend under Rule 28(4). The court approached the amendment request in light of the procedural posture: the amendment was sought after a settlement had been made an order of court.


The court treated the settlement order as having brought finality to the dispute between the parties, emphasising that a settlement agreement made an order of court is transformed into an enforceable order with consequences akin to other final orders. In this regard, the court relied on authority indicating there is no material difference in law between different forms of final orders (including those resulting from settlement), and on Constitutional Court authority explaining the transformative effect when a settlement is made an order of court.


A pivotal step in the reasoning was the court’s acceptance of the respondent’s submission that once a final order has been granted, the court becomes functus officio in respect of the subject matter, and that the permissive discretion to allow amendments under Rule 28 is framed as operating before judgment. The court considered it “inconceivable and unprecedented” to allow amendment where an extant court order had already brought finality, because such relief would undermine and effectively “flout” the court order. The court held that the applicant’s remedy was not permissible at that stage while the settlement order remained in existence.


The applicant’s argument that both the settlement agreement and the underlying credit agreement had “expired” with time was rejected. The court noted that counsel did not provide supporting authority for the proposition as advanced, and the court found reliance on section 126B of the National Credit Act to be misplaced. The court interpreted section 126B as addressing the prohibition on the sale of prescribed debt under credit agreements (or where prescription is invoked), and held it did not apply on the facts as presented, including because the debt had not been sold and had not prescribed on the applicant’s own version.


The court likewise rejected submissions relating to non-compliance with sections 129 and 130 of the National Credit Act, reasoning that the summons had been served and that such process is preceded by compliance with those provisions, and more fundamentally that the settlement order had already brought the matter to finality. The court underscored that a court order stands and must be obeyed until set aside by a competent court, and relied on authority stressing public policy considerations in favour of obedience to court orders.


On the costs application under Rule 41(1)(c), the court set out the text of Rule 41(4) (judgment on a written settlement not carried out) and Rule 41(1) (withdrawal and costs consequences, including the entitlement to apply for costs where withdrawal occurs without tender). The court identified the governing approach as one of discretion informed by fairness, while noting the general principle that a party who withdraws proceedings is ordinarily in the position of an unsuccessful litigant and should pay costs absent sound reasons.


The applicant’s attempt to avoid an adverse costs order was evaluated against its explanation that it had reconsidered the benefit of pursuing the withdrawn applications, that the settlement agreement had allegedly matured/expired, and that both parties had failed to comply with the oral evidence order. The court rejected the “expiry” assertion as unsubstantiated. The court also expressed the view that the Rule 41(4) and rectification applications were ill-timed because the settlement agreement had already been made an order of court, and it further held that the settlement agreement was novated by operation of law when it became an order of court.


As to non-compliance with the oral evidence order, the court held that responsibility lay with the applicant as dominus litis in those applications. The court attributed the lack of progress and the failure to comply with the order exclusively to the applicant, characterising the approach as lackadaisical and finding the applicant’s argument for each party to pay their own costs untenable. On an overall fairness assessment, the court concluded that justice required the applicant to bear the costs occasioned by the withdrawn proceedings and the Rule 41(1)(c) application.


Outcome and Relief


The application for leave to amend the particulars of claim was dismissed.


The applicant was ordered to pay the costs of the amendment application, including the costs of counsel.


The applicant was further ordered to pay the costs of the withdrawn Rule 41(4) application, the withdrawn rectification application, and the respondent’s Rule 41(1)(c) costs application, including the costs of counsel.


Cases Cited


Moratis Investments (Pty) Ltd and Others v Montic Diary (Pty) Ltd and Others (799/2016) [2017] ZASCA 54 (18 May 2017). Eke v Parsons 2015 (11) BCLR 1319 (CC). Bezuidenhout v Patensie Sitrus Beherend BPK 2001 (2) SA 224 (E). Kotze v Kotze 1953 (2) SA 184 (C). Germishuys v Douglas Besproeiingsraad 1973 (3) SA 299 (NC). Ward v Sulzer 1973 (3) SA 701 (A). Widlife and Environmental Society of South Africa v MEC for Economic Affairs, Environment and Tourism Eastern Cape Provincial Government and Others 2005 (3) All SA 389 (E).


Legislation Cited


National Credit Act 34 of 2005 (including sections 126B, 129 and 130). Prescription Act 68 of 1969.


Rules of Court Cited


Uniform Rules of Court 28(1), 28(3), 28(4) and 28(10). Uniform Rules of Court 41(1)(a), 41(1)(b) and 41(1)(c). Uniform Rule of Court 41(4). Uniform Rule of Court 42(1)(a).


Held


The court held that, because the parties’ settlement agreement had been made an order of court and had not been set aside or varied, it brought finality to the action and remained binding. In that context, the court held that it was not permissible to entertain an amendment to the applicant’s particulars of claim, as doing so would undermine an extant court order and conflict with the principle that a final order stands until set aside.


The court further held that, where the applicant withdrew its Rule 41(4) and rectification applications without consent and without tendering costs, the general principle applied that the withdrawing party should pay costs. On the facts, and taking account of the applicant’s role as dominus litis and responsibility for non-compliance with the earlier oral-evidence directive, the court exercised its discretion to order the applicant to pay the respondent’s costs relating to the withdrawn proceedings and the Rule 41(1)(c) application.


LEGAL PRINCIPLES


A settlement agreement made an order of court is transformed into an enforceable court order, and its terms assume the status and consequences of a court order rather than remaining merely contractual. This transformation supports the principle of finality in litigation and affects the permissible procedural steps thereafter.


Once a final order has been granted, the principle of functus officio operates so that the court’s authority over the subject matter is exhausted, subject to recognised exceptions. Within this framework, the discretion to permit amendments under Rule 28 is understood as operating prior to judgment, and an amendment sought after finalisation by court order is not ordinarily competent while the order stands.


A court order must be obeyed until set aside by a court of competent jurisdiction. Public policy considerations favour compliance with court orders and oppose litigants taking steps that effectively circumvent or undermine extant orders.


Where proceedings are withdrawn without a tender of costs, Rule 41(1)(c) provides a mechanism for the opposing party to seek a costs order. The awarding of costs remains discretionary, but the general rule is that the withdrawing party is treated as an unsuccessful litigant and should pay the other party’s costs, unless fairness and the overall circumstances justify a different outcome.

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[2023] ZAWCHC 171
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Superdrive Investments Limited (RF) v Adams (761/2018) [2023] ZAWCHC 171 (21 July 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:761/2018
In
the matter between:
SUPERDRIVE
INVESTMENTS LIMITED (RF)
Applicant
And
CHANTAL
ADAMS
Respondent
JUDGMENT
DELIVERED ELECTRONICALLY ON 21 JULY 2023
RALARALA,
AJ
INTRODUCTION
[1]
Two applications serve before me: one from the applicant seeking the
amendment of its particulars of claim brought in terms
of rule 28(4)
of the Uniform Rules of Court; and the other from the respondent
which is an application for a cost order in terms
of rule 41(1) (c)
of the Uniform Rules of court. Both applications are opposed and
opposing papers were accordingly filed. For
ease of reference the
parties will be referred to as applicant and respondent in both
applications.
[2]
The applicant seeks leave to amend the prayers its particulars of
claim by replacing it with the following:
“
WHEREFORE the
Plaintiff claims, in its aforesaid representative capacity against
the Defendant for:
1.
Correction to the Agreement in respect
of the Chassis Number from ONS[…] to WBA[…];
2.
Cancellation of the Agreement;
3.
Payment of the amount of R419 608.43;
4.
Interest on the amount of R419 608.43 at
the rate of 1.500% per annum above the prime overdraft rate from time
to time, currently
10.250% from 5 DECEMBER 2017 to date of final
payment;
5.
Costs on attorney client scale;
6.
Further and or alternative relief.
IN
THE ALTERNATIVE CLAIM:
1.
Correction to the Agreement in respect of
Chassis Number from ONS[…] to WBA[…];
2.
Confirmation of Cancellation of the Agreement;
3.
Return of the goods being:
VEHICLE
DESCRIPTION
2014
BMW 3201 M SPORT LINE A/T (F30)
ENGINE
NUMBER
B93[…]
CHASSIS
NUMBER
WBA[…]
4.
That judgment for the amount of damages that
the Plaintiff may have suffered, together with interest thereon, be
postponed sine
die, pending the return of the vehicle to the
Plaintiff, the subsequent valuation and sale of the vehicle, and the
calculation
of the amount to which the plaintiff is entitled.
5.
Interest on the aforementioned amount per annum
above the prime overdraft rate of 1.500% as from 19 SEPTEMBER 2018 to
date of final
payment, with such interest to be capitalized monthly
in advance.
6.
Costs of suit on an Attorney client scale;
7.
Further and /or alternative relief.”
[3]
The respondent applies to this court in terms of rule 41(4)(c) that:
1.  In accordance
with the provisions of rule 41(1) (c) of the Uniform Rules of Court,
the plaintiff be directed to pay the
defendant’s costs in
respect of the plaintiff’s application for rectification and
its application in terms of rule
41(4) of the Uniform Rules of Court,
which the plaintiff withdrew on 30 June 2022 without consenting to
pay the costs thereof.
2. That the plaintiff be
ordered to pay the costs of this application.
3. Such further and /or
alternative relief be granted to defendant.
FACTUAL
BACKGROUND
[4]
The applicant instituted an action against the respondent for payment
of R418 608.43, together with interest and costs, pursuant
to the
cancellation of an instalment sale agreement concluded between the
parties for the purchase of a 2014 BMW 320i. The sale
agreement was
subject to the application of the NCA. On 27 February 2018, the
respondent defended the action, and the plaintiff
launched an
application for summary judgment.
[5]
A settlement agreement was concluded by the parties on 29 March 2018,
and made an order of court on 16 April 2018. The respondent
failed to
comply with the terms of the settlement order, and on 26 October
2018, the applicant applied for judgment in terms rule
41(4). On 16
November 2018 judgment was granted in favour of the applicant. The
respondent brought an application for rescission
of the judgment in
terms of rule 42(1) (a) of the Uniform Rules of court, on the basis
that the judgment was erroneously granted.
The respondent disputed
the settlement amount which the applicant obtained judgment for,
claiming that the judgment amount of R326
688.59 could not have been
correct as the settlement provided for a final payment of R210 959 as
at 5 September 2018. The applicant
conceded to rescission of
judgment, and an order rescinding the judgment was granted on 12
March 2019. The rule 41(4) application
was postponed to the semi
urgent roll.
[6]
The application for rectification of the settlement agreement was
launched on 25 June 2019 and subsequently enrolled on the
semi urgent
roll on 14 August 2019 with the rule 41(4) application. On 14 August
2019 Hlophe JP, referred the matter for oral evidence
to be heard on
10 February 2020, and the parties’ subsequent conduct of the
matter was recorded. The parties failed to comply
with the court
order and on 21 May 2020 the matter was removed from the roll with a
view to settle the matter.
[7]
A notice of withdrawal of the application for judgment in terms of
rule 41(4) and the application for rectification of the settlement

agreement notice were delivered on 30 June 2022. An application for
an order as to costs in terms rule 41(1) (c) was served on
the
applicant pursuant to the withdrawal of the application for judgment
in terms of rule 41(4). On 27 July 2022, a notice to amend
the
applicant’s particulars of claim in terms of rule 28(1) was
delivered.  The applicant alleges that the respondent
served a
notice of objection in terms of rule 28(3) of the Uniform Rules of
Court on 11 August 2022.
THE
APPLICATION FOR AMENDMENT OF THE PARTICULARS OF CLAIM
THE
APPLICANT’S SUBMISSIONS
[8]
The applicant avers that the settlement agreement expired on 5
September 2018, and that the respondent has not settled the arrears

and remains in possession of the motor vehicle. The intended
amendment seeks to introduce a prayer for the return of the vehicle.

The applicant asserts that the application is not mala fide and it
will allow the parties to ventilate the dispute and assist in

determining the real issues between them. Ms. Samkange, on behalf of
the applicant argued that the amendment will not prejudice
the
respondent as it does not introduce a new cause of action and the
principal issue between the parties remains the same. The
applicant
also claims that the proposed amendment is borne out of the same
facts.
[9]
Meanwhile, the respondent asserts that the applicant is unduly
escalating the costs in the matter by the withdrawal of these

applications, and attempting to unilaterally renege on an agreement
which was entered into between the parties. The respondent
contends
that the agreement in clause 5 provides that the agreement would
constitute the entire and sole agreement between the
parties in
respect of the subject matter, that neither of the parties would be
bound by any undertakings, representations, warranties,
promises and
the like not recorded therein, and that no variation, amendment or
cancellation, of the settlement agreement or its
terms shall be of
any force and effect unless reduced to writing by both parties to the
agreement.
[10]
Mr. Gagiano, for the respondent, contends that the applicant and the
respondent are both bound by the terms of the agreement
which was
made an order of court and thereby the action of these proceedings
were concluded and finalized. According to the respondent
the
requests addressed to the applicant to provide the correct amount
that the respondent is required to pay in terms of the settlement

agreement were ignored.
[11]
The respondent alleges that the applicant in launching this
application is attempting to resuscitate a claim which has been

settled and finalized by way of judgment. The respondent continued by
asserting that the applicant is not entitled to the requested

amendment and denies that the application is not mala fide.
[12]
The respondent denies that the amendment would allow for adequate
ventilation of the parties’ disputes due to the applicant’s

failure to take the court into confidence and explain the reasons for
abandoning the application for rectification in terms of
rule 41(4).
The respondent   contends that the settlement order is
still in force and effect and has not been set aside,
nor varied, and
accordingly the proceedings under this case number have concluded.
[13]
In reply the applicant refutes that clause 5 of the settlement
agreement precludes the applicant from pursuing the rights under
the
original instalment agreement. For completeness clause 5 reads:
“
Neither of the
parties shall be bound by any undertakings, representations,
warranties, promises and the like not recorded herein.
This agreement
constitutes the entire and sole agreement between the parties in
respect and regarding the subject matter. No variation,
amendment or
cancellation, including consensual cancellation, of this agreement
and or its terms (including this clause) shall
be of any force and
effect unless reduced to writing and signed by both parties to the
agreement.”
[14]
The applicant argues that the parties insofar as the applicant’s
rights remain expressly reserved as provided for in
clause 4.2 and
4.3 which read:
“
4.2 Nothing in
this agreement is to be construed and /or regarded as novating and /
or compromising the Applicant’s /Plaintiff’s
rights. This
agreement is concluded without prejudice to, and with full
reservation of Applicant from pursuing its rights under
this
settlement and in terms of the Instalment Sale Agreement.
4.3 The parties agree
that the Applicant/Plaintiff in its absolute and sole discretion, act
in terms of and pursue its rights as
and when Applicant’s/Plaintiff’s
so desires and/or requires are and remain at all n times expressly
reserved.”
[15]
The applicant denies that this application is a resuscitation of its
claim that had been settled by the parties. The applicant’s

contention in amplification is that the applicant only seeks
compensation for the motor vehicle in the respondent’s
possession.
Alternatively, the applicant seeks the return of the
motor vehicle as the defendant has failed to pay its full purchase
price in
terms of the instalment sale agreement.
THE
APPLICATION TERMS OF RULE 41(1)(c)
[16]
The application relates to the withdrawal of the applicant’s
application for judgment brought in terms of rule 41(4)
and the
application for rectification of a settlement agreement entered into
by the parties, which was made an order of court.
The relief sought
by the respondent in the form of an order directing the applicant to
pay the costs of the withdrawn rectification
application. In their
replying affidavit, addressing this issue, the applicant submits that
both parties be ordered to pay their
own costs given that prior to
the applicant’s withdrawal, the respondent had failed as well
to comply with the 14 August
2019 order by the Judge President.
THE
ISSUES TO BE DETERMINED
[17]
The court has to determine the following issues:
1.whether the amendment
of the particulars of claim is justifiable given the settlement
order.
2. whether the applicant
should bear the costs of the application for rectification of the
settlement order that was subsequently
withdrawn by the applicant.
APPLICABLE
LAW AND ANALYSIS
[18]
Rule 28 governs the amendment of pleadings in the High Court. The
rule provides as follows:
“
Amendment of
Pleadings and Documents
(1)
Any party desiring to amend a pleading or
document other than a sworn statement, filed in connection with any
proceedings, shall
notify all other parties of his intention to amend
and shall furnish particulars of the amendment.
(2)
The notice referred to in sub rule (1) shall
state that unless written objection to the propose amendment is
delivered within 10
days of delivery of the notice, the amendment
will be effected.
(3)
An objection to a proposed amendment shall
clearly and concisely state the grounds upon which the objection is
founded.
(4)
If an objection which complies with sub rule
(3) is delivered within the period referred to in sub rule 9(2). The
party wishing
to amend may, within 10 days, lodge an application for
leave to amend.”
[19]
The applicant seeks to amend the pleadings, specifically its
particulars of claim subsequent to a settlement order. In
amplification
the applicant argued that the court would grant such
relief unless the amendment is mala fide. In justifying the
chronological
sequence of events in the matter, the applicant argues
that the settlement agreement and the credit agreement had since
expired
concomitantly on 5 September 2018. The respondent in her
answering affidavit contends that the settlement order is still in
force
and effect as it has not been set aside or varied. Ms.
Samkange, counsel for the applicant, in their heads of argument
asserted
that the amendments sought will clarify the application of
common law action of rei vindication and the National Credit Act
apply
to material facts and cause of action.
[20]
Discernment in this matter necessitates that the consideration of
this issue be considered in the context of the application
for the
amendment of the particulars of claim being brought pursuant to a
settlement agreement that has been made an order of court.
As
previously stated, the respondent opposes the present application on
the basis that the settlement order is still extant. Mr
Gagiano, for
the respondent referred to a number of authorities dealing with the
issue of settlement orders, to which I will refer.
Considering
the proposed amendment at this stage of the litigation of the matter,
through the lens of these decided cases, the
proposition is that such
a court order has the effect of finality to the action between the
parties. In
Moratis Investments (Pty) Ltd
and Others v
Montic Diary (Pty) Ltd and Others
(799/2016) ZASCA 54 (18 May
2017), the court held:
“…
There
is no difference in law between an order granted in the case of a
default judgment; and an order pursuant to a settlement
prior to the
conclusion of opposed proceedings; or the order in a judgment
pronounced at the end of the trial or opposed application.”
[20]
A settlement agreement made an order of court, transforms the
agreement terms to an enforceable court order. It is therefore
an
order like any other, ultimately converting the standing of the
rights and obligations between the litigants.
Eke v Parsons
2015
(11) BCLR 1319
(CC) 29 -31.
[21]
The crisp question that is raised is whether it would be permissible
for the court to revisit the particulars of claim for
the purposes of
effecting an amendment considering the strides traversed by the
parties in this matter. Rule 28 (10) permits a
court in the exercise
of its discretion to allow such an amendment, notwithstanding
anything to the contrary in this rule at any
stage before judgment.
The respondent contends in their heads of argument that once a court
has pronounced a final judgment, it
becomes
functus officio
and its authority over the subject matter comes to an end.  The
rule makes it clear that the court is only permitted to exercise
its
discretion in so far as granting of amendments of pleadings and
documents is concerned, prior to pronouncement of judgment
or
granting of an order in the matter. In this matter, the application
is brought pursuant to the granting of the order.
Since
finality to litigation is the main purpose of a court order, it is
inconceivable and unprecedented that a litigant will seek
to amend
the pleadings and be successful in that bid, where the order is still
in existence. Granting such a relief in those circumstances,
would be
flouting an order of court. Notably, the applicant had subsequent to
the court order, in a bid to enforce the order, applied
for summary
judgment which was granted and later rescinded at the behest of the
respondent. In my view the remedy sought by the
applicant is not
permissible at this stage of litigation.
[22]
Ms. Samkange, counsel for the applicant proffered an argument that
the credit agreement underpinning this action and the settlement

agreement have both expired through affliction of time. I was not
directed to any authority by counsel for the applicant supporting
and
substantiating this contention. Except for the averment in their
heads of argument, which states that more than 3 years has
lapsed
since the last payment was effected by the respondent and that her
debt should have prescribed in terms of section 126 B
of the National
Credit Act 34 of 2005 (‘NCA’), but summons delivered by
the creditor to the debtor interrupts the running
of prescription.
The argument continued to the effect that, this is the case in
circumstances where there has been non - compliance
with sections 129
and 130 of the NCA. Upon examination of Section 126B of the NCA,
discernibly, its provisions prohibit the sale
of debts under credit
agreements which have been extinguished by prescription under the
Prescription Act 68 of 1969
or where the consumer invokes the defence
of prescription. In my view the provisions of
section 126B
of the NCA
are not applicable
in casu
. In the instant case the debt has
not been the subject of a sale to debt collectors and the debt as the
applicant has submitted
has not prescribed. This argument in my view
is inconclusive.
[23]
Similarly, the argument of non - compliance with
ss 129
and
130
on
the part of the respondent is untenable as the summons have been
served which is a process preceded by compliance with
ss 129
and 130.
By virtue of a settlement order the matter have come to a finality.
It must be emphasized that the settlement agreement
has since
transformed together with its terms into an order of this court,
effectively laying the issues to the action to rest.
It can therefore
not be said that the order has expired. The applicant’s
argument is clearly unsustainable.
[24]
I share the views expressed by Mr. Gagiano’s argument that,
until such time that the order is set aside there can be
no
consideration of amendment of pleadings. An order of court ought to
stand until set aside by a court of competent jurisdiction.
Until
that eventuality transpires, the court order should be obeyed.
Bezuidenhout v Patensie Sitrus Beherend BPK
2001(2) SA 224
(E). Ours is a democratic state established on the value of the rule
of law. I also find the rationale expressed
by
Herbstein J in
Kotze v Kotze
1953 (2) SA 184(C)
reiterated by Froneman J in
Bezuidenhout
instructive to the matter at hand:
“
The matter is
one of public policy which requires that there shall be obedience to
orders of Court and that people should not be
allowed to take the law
into their own hands.”
[25]
It is thus my considered view that it is not permissible for the
court having brought the matter to finality to consider the
question
of amendment of the pleadings.
PAYMENT
OF THE DEFENDANT’S COSTS
[26]
The respondent filed a notice under rule 41(1) (c) of the Uniform
Rules of Court, pursuant to the plaintiff’s withdrawal
of its
judgment application in terms of rule 41(4) and subsequent
application for rectification of the settlement agreement. The

respondent contends that the withdrawal of both applications were
made without consent by the respondent and without the applicant

tendering of costs. In expanding its argument, the respondent asserts
that the general principle is that the withdrawing party
is liable as
an unsuccessful litigant, to pay the costs of the proceedings. Mr.
Gagiano relied on
Germishuys v Douglas Besproeiingsraad
1973
(3) SA 299
(NC) 300D-E:
“
Where a
litigant withdraws an action or in effect withdraws it, very sound
reasons must exist why a defendant or respondent should
not be
entitled to his costs. The plaintiff or applicant who withdraws his
action or application is in the same position as an
unsuccessful
litigant because, after all his claim or application is futile and
the defendant, or respondent, is entitled to all
costs associated
with the withdrawing plaintiff’s or applicant’s
institution of proceedings.”
[27]
In opposing the application the applicant argues that it weighed up
the advantages and benefits of pursuing both the rule 41(4)
and the
application for rectification of the settlement agreement. It is
further argued that the settlement agreement upon which
these
applications are grounded has matured. Another consideration
propounded by the applicant was the failure by the parties to
comply
with the 14 August 2019 court order which referred the matter to oral
evidence. The applicant avers that both parties are
blameworthy in
that they failed to move the application forward when the applicant
filed its notice of withdrawal.
[28]
Rule 41(4) of the Uniform Rules of Court reads:
“
Unless such
proceedings have been withdrawn, any party to a settlement which has
been reduced to writing and signed by the parties
or their legal
representatives but which has not been carried out, may apply for
judgment in terms thereof on at least five days’
notice to all
interested parties.”
Rule41(1) reads:
“
(a) A person
instituting any proceedings may at any time before the matter has
been set down and thereafter by consent of the parties
or leave of
the court withdraw such proceedings, in any of which events he shall
deliver a notice of withdrawal and may embody
in such notice a
consent to pay costs: and the taxing master shall tax such costs on
the request of the other party.
(b)  A consent to
pay costs referred to in paragraph (a) shall have the effect of an
order of court for such costs.
(c) If no such consent to
pay costs is embodied in the notice of withdrawal, the other party
may apply to court on notice for an
order for costs.”
[29]
The awarding of costs where an action or an application has been
withdrawn remains in the court’s discretion. Invariably
the
process includes consideration of all the facts between the parties
in view of fairness to the parties.
Ward v Sulzer
1973(3) SA
701 (A) 706G. Similarly, in
Widlife and Environmental Society of
South Africa v MEC for Economic Affairs, Environment and Tourism
Eastern Cape Provincial Government
and Others
2005(3) All SA 389
(E) , the court expressed :
“…
in my
view that even in cases where litigation has been withdrawn the
general rule is of application, namely, that a successful
litigant is
entitled to costs unless the court is persuaded in the exercise of
its discretion upon consideration of all facts that
it would be
unfair to mulct the unsuccessful party in costs.”
[30]
As  previously indicated, the applicant did not substantiate the
assertion that the settlement agreement had expired on
5 September
2018. Rule 41(4) relates to settlement agreements and not settlement
orders, in my view both the applications for judgment
in terms of
rule 41(4) and the rectification of the settlement agreement were
ill-timed, given that the settlement agreement was
already made an
order of court. In addition, and of significance is that the
settlement agreement between the parties was novated
by operation of
law when it became an order of court on 16 April 2018.
Eke 68.
Thus, the applicant’s argument is not sustainable.
[31]
Regarding failure to launch and initiate the oral evidence
proceedings, it is necessary to mention that the 14 August 2019
order
was issued pursuant to the applicant’s rule 41(4) and
rectification of the settlement agreement applications. Due to
the
inability  to initiate the oral evidence proceedings, the matter
was removed from the roll on 21 May 2021 in view of settlement.
The
applicant subsequently withdrew both applications without the consent
of the respondent or leave of the court to do so. In
both these
applications the applicant was
dominus litis
. In my view, the
lackadaisical approach taken to the launching of the oral evidence
process and the ultimate failure to comply
with the 14 August 2019
order, should be attributed exclusively to the applicant. The
applicant’s argument in my view, in
this regard is untenable.
[32]
Invariably, the court has a duty to dispense justice to the
litigants. In this instance justice demands the applicant be held

responsible for the costs.
ORDER
[33]
In the result, I make the following order:
[33.1]   The
application for amendment of the particulars of claim is dismissed.
[33.2]   The
applicant is ordered to pay the costs of the application including
costs of counsel.
[33.3]  The
applicant is ordered to pay the costs of the application in terms of
rule 41(4) , the application for rectification
as well as costs of
the rule 41(1)(c) including costs of counsel.
RALARALA
N E
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR APPLICANT:
ADV
G SAMKANGE
COUNSEL
FOR THE RESPONDENT:
ADV
GAGIANO

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