SAFLII Note: Certain personal/private det ails 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
GAUTENG DIVISION, PRETORIA
CASE NO: 5393/2021
In the matter between:
BMW FINANCIAL SERVICES
(SOUTH AFRICA) (PTY) LIMITED APPLICANT
And
RIYADH DOOLA RESPONDENT
________________________________________________________________
JUDGMENT
________________________________________________________________
Rr
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
______________________ 24 AUGUST 2026
SIGNATURE DATE
THOBANE AJ,
Introduction
[1] The parties in this matter are locked in seemingly very acrimonious and
protracted litigation with applications and counter applications flowing back
and forth.
[2] In this application the parties will be referred to as in the main application
for purposes of convenience.
[3] The applicant is BMW Financial Services South Africa (PTY) Limited, a
company with limited liability duly incorporated and existing under the
company laws of the Republic of South Africa and having its registered address
and principal place of business at 1[...] B[...] Avenue, Randjiespark, Extension
17, Midrand.
[4] The respondent is Riyadh Doola, a major male person with full
contractual capacity whose chosen domicilium citandi et executandi is
Clearwater Mall, Shop [……], Strubenvalley, Gauteng.
[5] On 09 June 2017 an entity called Northend Showroom CC (Northend), of
which the respondent was a sole member and through its duly authorised
representative, concluded an Instalment Agreement with the applicant. The
entity subsequently became deregistered, so the applicant alleged. At the time
the summons was issued, the applicant elected to proceed against the
respondent as the entity had been deregistered, besides there was a suretyship at
play.
[6] The respondent defended the matter and asserted that the entity was not
deregistered but was in liquidation. The respondent further raised other
defences including the fact that he had made an offer in “full and final
settlement” of the dispute between the parties, which offer was accepted by the
applicant. The respondent further denied being in default or in breach of the
agreement.
[7] There were other applications back and forth between the parties such as
the application for summary judgment, which was opposed; condonation
applications, and other pleadings and notices being exchanged, eventually
however and fast forward to February 2022, the applicant launched an
application in terms of Rule 28(4) of the Uniform Rules of Court1, to amend the
particulars of claim, which application the respondent opposed. The proposed
application for amendment was however limited and/or circumscribed. It sought
to amend or add three paragraphs to the particulars of claim which I will return
to later, as well as the addition of two annexures to the particulars of claim. It
was however objected to on the basis that, among others, it sought to introduce
new causes of action in an attempt to correct issues in the particulars of claim;
that it introduces a new cause of action based on an acknowledgement of
liability in respect of an alleged shortfall and lastly that the proposed
amendment was not in accordance with the Rules of Court.
[8] Opposition of the application was followed by two counter applications
from the respondent. Firstly, that the applicant should be declared a vexatious
1 28. Amendment of pleadings and documents
…
…
(4) If an objection which complies with subrule (3) is delivered within the period referred to in subrule (2), the party
wishing to amend may, within 10 days, lodge an application for leave to amend.
litigant. Secondly, that costs should be awarded against the applicant on
attorney and client scale from inception of the litigation up to the granting of
the order in terms of Rule 28(4).
Point in limine
[9] The respondent raised a point in limine. It was agreed at the
commencement of the hearing of the matter that the point in limine will be
argued first, thereafter the parties will argue and move their respective
applications. In arguing their respective points, the respondent contended that
the person who deposed to the affidavit in support of the Rule 28(4) application,
the attorney for the applicant Ms. Lina Marema-Oyebola, lacked the requisite
authority to depose to the affidavit founding the application. It was particularly
submitted on behalf of the respondent that all that the affidavit asserted, was
that the attorney was entitled to depose to the affidavit; that the facts therein are
within the attorney’s knowledge; that Velile Tinto Attorneys have been
appointed as attorneys of record for the applicant and that the attorneys
possessed the file. Lastly, that they had access to all the documents. Therefore,
it was contended on behalf of the respondent, that the attorney lacked locus
standi and therefore the point in limine should be upheld.
[10] Counsel for the applicant argued that there was simply no merit in the
point in limine and that it should be dismissed. She further submitted that the
correct pathway to what the respondent sought to achieve through the point in
limine was to utilise Rule 7(1)2 so that proper authority could be proven after
2 7 Power of Attorney
(1) Subject to the provisions of subrules (2) and (3) a power of attorney to act need not be filed, but the authority of
anyone acting on behalf of a party may, within 10 days after it has come to the notice of a party that such person is so
acting, or with the leave of the court on good cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless he satisfied the court that he is authorised so to act, and to enable him to do so the court
may postpone the hearing of the action or application.
the filing of a requisite notice challenging authority by the concerned party. In
addition, counsel submitted that there was minimal risk that Velile Tinto
Attorneys, a prominent law firm representing the applicant, would simply act in
the matter without the requisite authority. Therefore, the attack of the authority
of the attorney was without merit.
[11] Counsel further submitted that the point in limine should be dismissed as
there were well established principles about how to go about challenging a
party’s authority. Further, she added, there is ample case law setting out the
principles to be followed when challenging authority.
[12] In reply, counsel for the respondent asserted that counsel for the applicant
was misleading the court, which assertion caused consternation and was
immediately objected to by counsel for the applicant. Counsel for the
respondent referred the court to a resolution of the applicant on CaseLines and
argued that nowhere in the resolution is the issue of an attorney signing
documents mentioned3. Counsel reiterated her prayer that the point in limine be
upheld with costs.
Discussion
[13] The manner of challenging authority is well settled in our law. There is of
course a difference between authorising the institution or defence of
proceedings on the one hand and authority to act on the other. As I understand
the point in limine, the respondent is challenging the authority of the applicant’s
legal representative to act particularly in relation to deposing to the founding
affidavit. Counsel specifically argued the point in limine with reference to the
3 CL 3-63 and CL 3-63.
founding affidavit deposed to by the attorney of the applicant, and pointed to
the portion therein about the attorney having access to documents.
[14] In Firstrand Bank Limited v Hazan and Another; Firstrand Bank Limited
v Hazan Wholesalers and Distributors 4 the court had occasion to set out
succinctly the correct legal position, mentioned below, on facts about authority
which are not dissimilar to this matter;
“[12] The respondents challenged the authority of the deponent to FNB’s founding
affidavit, Barend Johannes de Beer (‘Mr de Beer’), a recoveries manager of FNB, to depose
to FNB’s founding affidavit and to bring the application on behalf of FNB.
[13] In determining the question whether a person has been authorised to institute and
prosecute motion proceedings, it is irrelevant whether such person was authorised to depose
to the founding affidavit. The deponent to an affidavit in motion proceedings need not be
authorised by the party concerned to depose to the affidavit. It is the institution of the
proceedings and the prosecution thereof that must be authorised. The remedy of a
respondent who wishes to challenge the authority of a person allegedly acting on behalf of
the purported applicant is not to challenge the authority in the answering affidavit but
instead to make use of Rule 7(1) of the Uniform Rules of Court. See Unlawful Occupiers,
School Site v City of Johannesburg 2005 (4) SA 199 (SCA) para [14]-[16]; Eskom v Soweto
City Council 1992 (2) SA 703 (W) at 705C-J; Ganes and Another v Telecom Namibia
Ltd 2004 (3) SA 615 (SCA) para [18]-[19]; ANC Umvoti Council Caucus and Others v
Umvoti Municipality 2010 (3) SA 31 (KZP) para [27]-[28] and FirstRand Bank Ltd v
Fillis 2010 (6) SA 565 (ECP) para [12] - [13].
[14] The respondents did not avail themselves of the procedure provided for in Rule 7(1),
and it is thus not open to the respondents to challenge the authority of the deponent to
and it is thus not open to the respondents to challenge the authority of the deponent to
FNB’s founding affidavit either in regard to deposing to the affidavits or in regard to
4 Firstrand Bank Limited v Hazan and Another; Firstrand Bank Limited v Hazan Wholesalers and Distributors CC
(2013/47366, 2013/47367) [2016] ZAGPJHC 20; [2016] 2 All SA 112 (GJ) (18 February 2016) para 12 to 14.
instituting the applications. There is no merit in the contention of lack of authority on the
part of the deponent to FNB’s founding affidavit.” (The underlining is my emphasis.)
[15] At the hearing of the matter counsel for the respondent did not attempt to
seriously engage with the choice to forgo Rule 7(1) and opt to raise a point in
limine instead. This after counsel for the applicant was at pains to point out that
there were plenty decided cases and that it was a well settled area of the law.
[16] In the absence of authority, from the respondent, for the proposition that a
point in limine is the correct pathway to challenge authority as opposed to
utilisation of Rule 7(1), it simply means the point is without merit, particularly
in
light of the arguments raised about this being a settled area of our law.
The Rule 28(4) application brief background
[17] The applicant’s action is based on an Instalment Agreement between the
parties concluded on 09 June 2017. In terms of the agreement, Northend
Showroom CC purchased a motor vehicle. The details of the motor vehicle are
not necessary, suffice to say it was for the sum of R1 058 459-45. The vehicle
was delivered to the respondent and this aspect was not placed in dispute. There
are other ancillary conditions which are not relevant to the issues to be
determined by this court. They will not be referred to.
[18] On the same day of the conclusion of the Installment Agreement, the
respondent, in person, signed a suretyship in terms of which he bound himself
as surety and co-principal debtor for payments due by Northend Showroom CC.
The suretyship goes further to say that the obligations for which the surety (the
respondent) binds himself could be for a limited amount which shall be limited
to all debts and obligations of whatsoever nature and howsoever arising from
the agreement, which was then or which may thereafter become owing by, or
claimable from Northend Showroom CC in respect of any cause of debt.
Northend Showroom CC has since gone into liquidation. Following the
outcome of the summary judgment application, and based on what the
respondent pleaded, the applicant brought an application in terms of Rule 28(4).
The respondent in turn, opposed the Rule 28(4) application and in addition
brought the counter application to have the applicant declared a vexatious
litigant and later sought a costs order against the applicant from the
commencement of the matter.
Applicant’s submissions
[19] Counsel submitted that the amendments sought are encapsulated in
paragraphs 8.1. to 8.3 5 as set out in the Notice of Amendment. Those
paragraphs read as follows;
“8.1. During February 2019, the Plaintiff accepted an offer from BMW Bavaria for an
amount of R350 000.00 for purchasing the vehicle 2017 BMW 320i M Sport AT (F30) LCI,
with the Engine number: F[...] and Chassis Number: W[...] (hereinafter “he Vehicle”);
8.2. On 22 February 2019, the Plaintiff addressed a letter to the Defendant informing him
that the Plaintiff will release the registration documents in respect of the above vehicle upon
receipt of R350 000.00. Furthermore, the letter requested that the Defendant acknowledge
liability in respect of the shortfall amount, by affixing his signature. A copy of the letter is
attached hereto as Annexure “D1”;
8.3. On 20 February 2019, the Defendant addressed a letter to the Plaintiff advising the
Plaintiff of his plans for the repayment of the shortfall amount. A copy of the letter is
attached hereto as Annexure “D2”.”
5 CaseLines 0001-17.
[20] It was argued by counsel for the applicant that the case advanced by the
respondent in resisting summary judgment was not in line with the defence that
he advanced in his plea in the main case. The respondent, counsel for the
applicant asserted, was a sole member of the Close Corporation (Northend) and
that it was not in dispute that the letter dated 20 February 2019 was signed by
Mr. Doola 6 . In that letter Mr. Doola undertook to make payment. The
respondent could not distance himself from any of the two documents “D1” and
“D2”, for it is clear, therefrom, that they both bear the same e-mail address that
the parties had always utilised. It would be misleading to characterize the
document as an acknowledgment of debt, it was submitted. That is because the
document mentions at paragraph 4 thereof, that an acknowledgment of debt
would be prepared. This could only have meant later. It reads as follows;
“Please note that as previously indicated this amount will not be sufficient to settle
the agreement and that you will be liable for the shortfall remaining on the account
once the amount has been capitalised on the account.”
[21] Counsel submitted that although the document “D1”, was not signed by
Mr. Doola, there would be no prejudice whatsoever in allowing the amendment
particularly because the cause of action remains the same and no new cause of
action would be created and introduced as argued by the respondent. She
argued that in “D1” the entity Northend Showroom CC is not even mentioned,
meaning the shortfall was that of Mr. Doola and nobody else’s.
[22] The court was then taken through the paragraphs of the respondent’s
answering affidavit to the Rule 28(4) application and the founding affidavit to
the counterclaim on issues with which the applicant did not agree or issues she
6 CaseLines 0001-22.
sought to clarify. I do not plan to go through each and every one of them
because in parts the affidavits were repetitive. In the main it was disputed by
counsel for the applicant that the document which the respondent referred to as
an acknowledgment of debt was one. It was contended that there was no such
indication, in clear text on the document. It was asserted that the letter which
Mr. Doola seemed to disavow, was in fact requested by him and the response
thereto equally was addressed to him. The contention by the respondent that the
applicant was abandoning the cause of action based on a suretyship was
disputed and rejected. It was disputed that a new cause of action will be
introduced by the proposed amendment and that the particulars of claim will be
excipiable. To the extent that the respondent was alleging that the applicant was
introducing a new agreement, the court was referred to the non-variation clause
in the suretyship agreement itself. Whereas the respondent contended that the
proposed amendment in effect introduces a new agreement and that therefore
the provisions of Rule 18(6) are applicable, the applicant takes the view that
that Rule is not applicable. It was also denied that the leave to defend in the
summary judgment application was granted at the doorsteps of the court, as
argued by the respondent. The correct position it was argued, was that it was
agreed to sometime ago. Lastly, it was denied that when the summary judgment
application came before court, the respondent was represented by counsel as
none was briefed at the time. However, the instructing attorney was present to
oversee the hearing which was moved by counsel for the applicant. In addition,
respondent cannot argue, it was submitted, that the applicant had vast resources
and that he suffered financial loss in that the costs were reserved. Advocate
Anmarli van der Merwe only appeared in an application to condone the late
filing of heads of argument.
[23] The court was further taken through the plea of the respondent in
particular the sub-paragraphs of paragraph 9. In summary, counsel highlighted
that it was the respondent who approached the applicant to arrange the
surrender and sale of the motor vehicle. The chronology of events was also set
out. It was asserted that annexure “RD1” does not mention full and final
settlement even though the respondent insists that the arrangement for payment
was in full and final settlement. The email that the respondent sent to the
applicant after effecting payment, does not say that as well, it was argued.
Counsel submitted that opposition to the proposed amendment was frivolous
and that the application should succeed.
[24] Counsel turned her attention to the respondent’s heads of argument. She
referred to the portion therein where argument is made that the amendment if
allowed would render the particulars of claim excipiable, in particular; that it
was not clear whether the motor vehicle had been sold; if so when; the shortfall
was not clear; whether the R350 000-00 was taken into account was also not
clear and the lack of clarity whether the matter was proceeding on the basis of a
suretyship or an acknowledgement of debt. After dealing with the submissions
made in the heads of argument, counsel brought it to the court’s attention that
the applicant’s heads of argument were three years out of time which meant that
the practice directive had been totally disregarded and not complied with.
[25] Turning to the counter-application, counsel for the applicant accentuated
the fact that it is not true that the applicant is a vexatious litigant; that the
respondent alleges disregard of unnamed Rules by the applicant; that whereas
the respondent is of the view that the applicant has unlimited resources, that is
not true in that among others an offer was made to withdraw the counter-claim
and a tender of R1 000-00 was made towards wasted costs. The applicant
prayed that the counter application be dismissed with costs on the scale as
between attorney and client. The scale was influenced among others by the late
filing of heads of argument, the non-compliance with the Rules as well as the
submissions made about condonation.
Respondent’s submissions
[26] Counsel for the respondent firstly had to deal with the reason why the
respondent’s heads of argument were filed out of time without seeking
condonation for the late filing. They were filed on 15 July 2025. Counsel cited
sloppiness on the part of the Candidate Attorney for the delay. She however
apologized, took accountability and indicated that she had a responsibility to
check the work of the Candidate Attorney but did not do so because she was
immersed in preparations for the hearing.
[27] The proposed amendment if permitted will render the particulars of claim
excipiable, it was argued on behalf of the respondent. Paragraph 10 of the
particulars of claim, sets out that the respondent failed to timeously and
punctually perform his obligations under the Instalment Agreement and
Suretyship by falling into arrears with the monthly instalments, which arrears,
the respondent despite demand failed and/or refused and/or neglected to pay7.
The matter, it was submitted, has a long history with correspondence between
the parties dating back to 2019 and 2020.
[28] Counsel submitted that the particulars of claim would be excipiable
among others because;
28.1. It is not clear whether the motor vehicle was sold;
7 CaseLines 8-8.
28.2. If sold, it is not clear when the motor vehicle was sold;
28.3. It is not clear what the shortfall to be paid by the respondent would
be;
28.4. It is not clear if the applicant took into account the sum of
R350 000-00, in the event the motor vehicle was sold;
28.5. It is not clear if there is a shortfall to be paid in the event the sum of
R350 000-00, paid by the respondent was received by the applicant;
28.6. It is not clear, in the event the vehicle has been sold, whether the
applicant was still claiming the sum of R352 306-00;
28.7. It is not clear whether the applicant has received the sum of
R350 000-00, from the sale of the vehicle;
28.8. It is not clear whether the applicant is claiming the arrear amount as
per the particulars of claim or the shortfall as per the acknowledgment of
debt;
28.9. It is not clear whether the applicant is proceeding on the surety
agreement or the alleged acknowledgement of debt for the shortfall.
28.10. There was also mention of the R1 million rand purchase price of
the vehicle.
[29] If the proposed amendment is allowed, it would beg an additional
question, namely, whether the applicant is claiming specific performance,
counsel further submitted. With reference to the Section 1298 notice or letter,
counsel argued that the letter still referred to the sum of R1 million rand as the
amount of indebtedness therefore there was uncertainty. She further made
reference to Rule 18(4) and argued that the applicant’s proposed amendment, if
allowed, would fall foul of the provisions of the Rules9. In summary counsel
8 National Credit Act, 34 of 2005
9 18. Rules relating to pleading generally
argued that four things as accentuated by her, would render the particulars of
claim excipiable; namely, the uncertainty as to whether the applicant is
claiming arrears; the uncertainty whether the claim is for specific performance,
the lack of clarity as to whether the motor vehicle has been sold and lastly
whether the payment made by the respondent, in the sum of R350 000-00, has
been taken into account.
[30] Since this is a claim for damages, counsel argued that the provisions of
Rule 18(4) and 18(10), which in her view were applicable had not been
complied with and that that confirms the possible excipiability of the particulars
of claim, were the amendment to be allowed. In such circumstances an
application for amendment should not be allowed in that with it the particulars
of claim would make no sense it was submitted.
(4) Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his
claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to
reply thereto.
…
(10) A plaintiff suing for damages shall set them out in such manner as will enable the defendant reasonably to assess
the quantum thereof: Provided that a plaintiff suing for damages for personal injury shall specify his date of birth, the
nature and extent of the injuries, and the nature, effects and duration of the disability alleged to give rise to such
damages, and shall as far as practicable state separately what amount, if any, is claimed for—
(a) medical costs and hospital and other similar expenses and how these costs and expenses are made up;
(b) pain and suffering, stating whether temporary or permanent and which injuries caused it;
(c) disability in respect of—
(i) the earning of income (stating the earnings lost to date and how the amount is made up and the
estimated future loss and the nature of the work the plaintiff will in future be able to do);
(ii) the enjoyment of amenities of life (giving particulars);
and stating whether the disability concerned is temporary or permanent; and
(d) disfigurement, with a full description thereof and stating whether it is temporary or permanent.
[31] Counsel argued that the counter claim has its origins in the manner that
the legal representatives of the applicant conducted themselves in the lead up to
the summary judgment application. The applicant it would seem delayed
replying to correspondence until on the eve of the summary judgment
application. In addition, the Rule 28(4) did not include a tender of costs by the
applicant instead it sought the respondent to pay the costs in the event the
application was opposed. On 23 August 2021 the respondent served a notice
opposing summary judgment together with an affidavit resisting it. On 25
August 2021, the respondent’s legal representatives dispatched a letter to the
other side, seeking clarity whether they were willing to grant leave to defend or
if the application would be proceeding on 01 September 2021. The letter of 25
August 2021 went unanswered. Another letter to follow up the matter was sent
on 27 August 2021 and it sought a response to previous correspondence by the
close of business on 27 August 2021. There was a follow up telephone call and
an undertaking was made to respond to the correspondence, none was
forthcoming.
[32] On 30 August 2021 another letter was emailed to the legal representatives
of the applicant advising among others that counsel had already been instructed
and that costs should be tendered. The response from the applicant’s legal
representative only came on 31 August 2021. They advised that they will be
granting the respondent leave to defend and that it was not necessary to instruct
counsel as counsel for the applicant would be attending court. They were also
advised that a draft order would be uploaded on CaseLines.
[33] Counsel argued that it took two years for the Rule 30 to be heard and for
affidavits to be filed. She also indicated that the point in limine on lack of
authority of the applicant’s attorney was being abandoned and that costs in
respect thereof should be on the magistrate’s court scale as the applicant simply
did what she called “cut and paste” in preparation of the application. She
reiterated that on face value the proposed amendment would be excipiable.
[34] Counsel for the applicant in reply stated that whereas it was submitted
that there was no compliance with section 129 of the National Credit Act, it was
her contention that the section was not applicable in the current case. Further, it
was incorrect that the money demanded was the sum of a one million rand in
that the letter of demand was clear as to the amount owed. The letter of demand
on CaseLines10 was very clear about the amount being demanded and one of the
e-mails was sent to the e-mail address of the respondent. Also, that the
suretyship agreement11 was clearly signed by the respondent and its terms are
clear that the respondent is liable. The particulars of claim therefore if amended
could not be excipiable. It is also clear that the respondent in terms of the surety
agreement is liable for the costs of the litigation.
The law
The amendment
[35] The law as it pertains to amendments and the principles that generally
underpin the approach to amendments is set out in Commercial Union
Assurance Co. Ltd v Waymark NO12, which is the go to case on amendments. It
is therefore trite, in summary form that;
35.1. A court adjudicating an application for an amendment has a wide
discretion which it must exercise judiciously;
10 CaseLines 8-35 and 8-42 paragraph 5.
11 CaseLines 0001-28.
12 Commercial Union Assurance Co. Ltd v Waymark NO 1995 (2) SA 73 (Tk)
35.2 The effect of the rule is that an amendment will always be granted
unless if the application is made mala fide, would result in an injustice to
the other side which cannot be compensated by an appropriate cost order;
35.3. There must be an explanation for the amendment and it must bring
about a triable issue;
35.4. The amendment must bring about a proper ventilation of the dispute
between the parties;
35.5. The amendment should not be refused so as to punish the applicant
for negligence as an appropriate order of costs would be sufficient
enough;
35.6. A mere opportunity to gain time by the applicant is no reason, on its
own, to refuse the application;
35.7. If the amendment is not brought timeously, there must be a reason
advanced for the delay.
[36] In Affordable Medicines Trust v Minister of Health13 the Constitutional
Court had occasion to say the following about the principles governing
amendments;
“The principles governing the granting or refusal of an amendment have been set out
in a number of cases. There is a useful collection of these cases and the governing
principles in Commercial Union Assurance Co Ltd v Waymark NO. The practical rule
that emerges from these cases is that amendments will always be allowed unless the
amendment is mala fide (made in bad faith) or unless the amendment will cause an
injustice to the other side which cannot be cured by an appropriate order for costs, or
“unless the parties cannot be put back for the purposes of justice in the same position
as they were when the pleading which it is sought to amend was filed.” These
13 Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC) in paragraph [9]
principles apply equally to a Notice of Motion. The question in each case, therefore,
is what do the interests of justice demand.” (The underlining is my emphasis).
[37] The Supreme Court of Appeal in Media 24 (Pty) LTD v Nhleko14 weighed
in on the approach to be adopted to amendments and the true determinant for
purposes of decision making and said the following;
“In coming to its conclusion to refuse the application for amendment, the high court
paid scant regard to the purpose of pleadings, which is to define the issues between
the parties. Because the primary role of pleadings is to ensure that the real dispute
between litigants is adjudicated upon, courts are loath to deny parties the right to
amend their pleadings, sometimes right up until judgment is granted. An exception is
made when the amendment is mala fides or will result in an injustice which cannot be
cured by a costs order. Thus, the power of a court to refuse amendments is confined
to considerations of prejudice or injustice to the opponent.” (The underlining is my
emphasis.)
[38] Ranisc AJ in De Kock v Olivier 15 reiterates the requirements in the
judgment from a different angle, from which judgment I quote generously from
paragraph 22 through to 24;
“22. In the passage from Commercial Union v Waymark endorsed in Affordable
Medicines Trust (supra), the following further guidance is provided in relation to
when an amendment will be permitted:
“In Rosenberg v Bitcom 1935 WLD 115 at 117 Greenberg J, as he then was,
stated:
‘Although it has been stated that the granting of the amendment is an
indulgence to the party asking for it, it seems to me that at any rate the
modern tendency of the Courts lies in favour of an amendment whenever
14 Media 24 (Pty) LTD v Nhleko [2023] ZASCA 77 at para 16.
15 De Kock v Olivier (21144/2022) [2024] ZAWCHC 351 (6 November 2024)
such an amendment facilitates the proper ventilation of the dispute
between the parties.'
(My emphasis.) In Zarug v Parvathie NO 1962 (3) SA 872 (D) at 876C
Henochsberg J held:
'An amendment cannot however be had for the mere asking. Some
explanation must be offered as to why the amendment is required and if
the application for amendment is not timeously made, some reasonably
satisfactory account must be given for the delay.'
Caney J stated in Trans-Drakensberg Bank Ltd (under Judicial Management) v
Combined Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D) at 641A:
'Having already made his case in his pleading, 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 the record an issue for which he has no
supporting evidence, where evidence is required, or, save perhaps in
exceptional circumstances, introduce an amendment which would make
the pleading excipiable.' ”
23. Further support for these requirements is found in the full bench judgment of this
Court in Vinpro NPC v President of the Republic of South Africa [2021] ZAWCHC
261 in paragraph [25]:
“On this score, it is trite law: that a court is vested with a discretion as to
whether to grant or refuse an amendment: that an amendment cannot be
granted for the mere asking thereof: that some explanation must be offered
therefor: that this explanation must be in the founding affidavit filed in support
of the amendment application: that if the amendment is not sought timeously,
some reason must be given for the delay: that that party seeking the
amendment must show prima facie that the amendment has something
deserving of consideration: that the party seeking the amendment must not be
mala fide: that the amendment must not be the cause an injustice to the other
side which cannot be compensated by costs: that the amendment should not be
refused simply to punish the applicant for neglect and that mere loss of time is
no reason, in itself, for refusing the application.”
24. One of the circumstances where the other party would necessarily be prejudiced
is where an amendment would render a pleading excipiable. Such an amendment
ought not to be allowed, save in exceptional cases, where the balance of convenience
or some other reason might render another course desirable. See e.g. Cross v
Ferreira 1950 (3) SA 443 (C) at 450 E-G.”
Vexatious litigation
[39] Turning to vexatious litigation, such litigation is regulated by the
Vexatious Proceedings Act, 3 of 1956, whose provisions guide the court on
how and whether or not restrictions ought to be imposed on the institution of
proceedings. Section 2(1)(b) of the Act states that:
“If, on an application made by any person against whom legal proceedings have been
instituted by any other person or who has reason to believe that the institution of
legal proceedings against him is contemplated by any other person, the court is
satisfied that the said person has persistently and without any reasonable ground
instituted legal proceedings in any court or in any inferior court, whether against the
same person or against different persons, the court may, after hearing that person or
giving him an opportunity of being heard, order that no legal proceedings shall be
instituted by him against any person in any court or any inferior court without the
leave of the court, or any judge thereof, or that inferior court, as the case may be, and
such leave shall not be granted unless the court or judge or the inferior court, as the
case may be, is satisfied that the proceedings are not an abuse of the process of the
case may be, is satisfied that the proceedings are not an abuse of the process of the
court and that there is prima facie ground for the proceedings.”
[40] In Bisset and Others v Boland Bank Ltd and Others16 the court grappled
with the meaning of “vexatious” in the context of proceedings, as opposed to a
litigant, and gave a full and reliable definition. The issue of vexatious litigation
again served before the Constitutional Court in Lawyers for Human Rights v
Minister in the Presidency and Others17 2017 (1) SA 645 (CC) in the context of
abuse of process where Bisset was quoted with approval as follows;
“[19] What is “vexatious”? In Bisset the Court said this was litigation that was
“frivolous, improper, instituted without sufficient ground, to serve solely as an
annoyance to the defendant”. And a frivolous complaint? That is one with no serious
purpose or value. Vexatious litigation is initiated without probable cause by one who
is not acting in good faith and is doing so for the purpose of annoying or
embarrassing an opponent. Legal action that is not likely to lead to any procedural
result is vexatious.
[20] Whether an application is manifestly inappropriate depends on whether the
application was so unreasonable or out of line that it constitutes an abuse of the
process of court. In Beinash, Mahomed CJ stated there could not be an all-
encompassing definition of “abuse of process” but that it could be said in general
terms “that an abuse of process takes place where the procedures permitted by the
rules of the Court to facilitate the pursuit of the truth are used for a purpose
extraneous to that objective”. The Court held:
‘There can be no doubt that every Court is entitled to protect itself and others
against an abuse of its processes. Where it is satisfied that the issue of a
subpoena in a particular case indeed constitutes an abuse it is quite entitled to
set it aside. As was said by De Villiers JA in Hudson v Hudson and Another
1927 AD 259 at 268:
16 Bisset and Others v Boland Bank Ltd and Others 1991 (4) SA 603 (D).
17 Lawyers for Human Rights v Minister in the Presidency and Others17 2017 (1) SA para 19 and
20.
‘When . . . the Court finds an attempt made to use for ulterior purposes
machinery devised for the better administration of justice, it is the duty of the
Court to prevent such abuse.’
What does constitute an abuse of the process of the Court is a matter which needs to
be determined by the circumstances of each case. There can be no all-encompassing
definition of the concept of ‘abuse of process’. It can be said in general terms,
however, that an abuse of process takes place where the procedures permitted by the
Rules of the Court to facilitate the pursuit of the truth are used for a purpose
extraneous to that objective.”
[41] In Cohen v Cohen and Another18 the court summarised the legal position
and stated that in an application for someone to be declared a vexatious litigant,
the applicant must meet two requirements: firstly, the applicant must show that
the respondent has ‘persistently’ instituted legal proceedings and secondly, that
the instituted proceedings have been ‘without reasonable grounds’.
[42] Lastly, the issue of costs has been well settled in our law. Costs fall
within the discretion of the court. Costs follow the result. Sometime costs are
reserved for later determination. Where the court is unsatisfied by the conduct
of a litigant, it may award costs against that litigant on a higher than normal
scale. Where egregious gross misconduct or negligence is detected, the court
may even go to the extent of directing that costs be paid by the legal
representative from his/her own pocket.
Application of the law to the facts
[43] An issue that need not detain this court further is the point in limine raised
by the respondent, to the effect that the legal representative of the applicant
18 Cohen v Cohen and Another [2002] 4 All SA 21 (C); 2003 (1) SA 103 (C) (26 August 2002)
lacks authority. Although the point in limine was abandoned by the respondent,
the abandonment came late in the day after the point had been fully argued
before court by both parties.
[44] Counsel for the respondent, prior the abandonment, failed to refer the
court to any authority for the proposition that the attorney of the applicant
lacked authority or locus standi. This, counsel failed to do in the face of the
applicant’s submissions which were supported by formidable case law. This
meant that the case by the respondent, the point in limine, was not meritorious.
It follows therefore that the point in limine falls to be dismissed, abandonment
notwithstanding, because it came after full arguments and most importantly
during the reply stage of proceedings.
Application for amendment
[45] I now turn my attention to the main application, that of amendment of the
particulars of claim. I will thereafter deal with the counter application. The
proposed amendment seeks to introduce three paragraphs and two annexures
“D1” and “D2” to the particulars of claim, as mentioned above.
[46] The terms of the Instalment Agreement concluded between the parties are
common cause. In pleading to the particulars of claim, the respondent stated
that in 2019, prior the liquidation of Northend Showroom CC, he approached
the applicant and made an offer for them to buy back the vehicle that he
previously purchased from them19. They reverted to the respondent and advised
him in a letter or email annexed to the respondent’s plea as “RD1”, that the
19 CaseLines 19.4, paragraph 9.2 of the respondent’s plea.
offer he made, to the applicant, for the buy-back of the vehicle, was acceptable.
“RD1” inter alia read as follows;
“We Auto Bavaria BMW will purchase the below mentioned vehicle at the sum of
R350 000.00 providing that we get a paid up letter and the original natis upon
payment for the below mentioned vehicle so it can be sold by Auto Bavaria BMW.
Please advise on a settlement letter indicating the amount (R350 0000.00) with
reference and banking details so we can make the funds available.”20
[47] The respondent then pleaded, in his plea that following his acceptance of
the offer, a sum of R350 000-00 was paid, as he puts it, “in full and final
settlement”. The plea went on to say;
“The Defendant is not in any default of his obligations under the Instalment
Agreement as this matter was finally and fully settled (two) years ago. There are no
monthly instalments that are due, owing or payable by the Defendant based on the
Suretyship agreement either, as the matter between the parties has already been
settled”21.
[48] In the affidavit resisting summary judgment the respondent stated the
following22;
“The agreement with Bavaria Midrand was conditional on the settlement with the
Plaintiff being in full and final. This was a necessary precondition, as the Plaintiff
was listed as the Title Holder of the vehicle. Bavaria Midrand could not register the
vehicle into its name until the Plaintiff consented to such registration and gave up its
registration as a Title Holder for the Plaintiff to issue a “paid-up letter” to Bavaria
Midrand and the Plaintiff.”
20 CaseLines 19.5, paragraphs 9.3. and 9.4. of the respondent’s plea.
21 CaseLines 19-6, paragraph 9.9. of the respondent’s plea.
22 CaseLines 7-5 and 6, paragraph 9.2.
[49] This court is not going to immerse itself in issues that can only be
determined by the trial court after evidence is tendered. This court therefore can
only but comment or make observations for purposes of making a decision,
without making any determination. The observation of this court is that there is
nothing in the exchanges between the parties that says, “the settlement
agreement (to pay R350 000, submit a settlement or paid up letter, and the
exchange of NATIS documents) is/was conditional on whatever the parties
agreed on it being in full and final settlement”.
[50] For purposes of the Rule 28(4), the proposed amendment which seeks to
introduce paragraph 8.1. to the particulars of claim, if allowed, would introduce
an issue which is in the respondent’s plea as well as the affidavit resisting
summary judgment and is common cause to the parties. The common cause
points are that the respondent approached the applicant and made an offer for
the buy-back of the vehicle; the offer was accepted in writing with two
conditions. The conditions were firstly, that the respondent must obtain a paid-
up letter or settlement letter and secondly, that he must supply the original
NATIS document so that a sale can be facilitated. In fact, in the affidavit
resisting summary judgment the respondent deposed in relation to this issue as
follows23;
“9.4. Annexure RD1, being the letter from Bavaria Midrand is not disputed by the
deponent. Nor is it disputed that the Plaintiff provided a “paid up letter” and original
natis documents to Bavaria Midrand.”
[51] I find therefore that the objection to the proposed amendment by adding
paragraph 8.1. to the particulars of claim, contents of which are common cause
even on the respondent’s own version, is not meritorious.
23 CaseLines 7-6 paragraph 9.4.
[52] The next objection by the respondent is aimed at the proposed paragraph
8.2. which if allowed, would read as follows;
“On 22 February 2019, the Plaintiff addressed a letter to the Defendant informing
him that the Plaintiff will release the registration documents in respect of the above
vehicle upon receipt of R350 000.00. Furthermore, the letter requested that the
Defendant acknowledge liability in respect of the shortfall amount, by affixing his
signature. A copy of the letter is attached hereto as Annexure “D1”.”
[53] Whereas the proposed amendment starts with paragraph 8.1. then moves
to 8.2. and 8.3., the correspondence on record suggests that events did not
unfold as chronologically set out in the paragraphs. The correct chronology of
events is as set out below.
[54] The reason for opining as set out above, is that the dates tell that story.
Set out in 8.1. is the story that an offer was accepted by the applicant.
Following that acceptance, the respondent wrote a letter, although this is
vehemently disputed by the respondent, to the effect that he was willing to
make an offer to repay the shortfall hence “D2”, though set out in paragraph
8.3. Lastly, the applicant dispatched a letter to the respondent dealing with the
release of the registration papers of the motor vehicle, payment of R350 000-00
and acknowledgement of liability for the shortfall by signing a document.
Details in respect of this are set out in “D1”. What then followed was that the
respondent wrote an e-mail to the applicant indicating that the R350 000-00 had
been paid and that that payment was in full and final settlement.
[55] For purposes of context and to defer to chronological timelines, I will
deal next with the proposed amendment aimed at introducing paragraph 8.3.
which in turn would introduce annexure “D2”. Paragraph 8.2. if allowed would
read thus;
“On 20 February 2019, the Defendant addressed a letter to the Plaintiff, advising the
Plaintiff of his plans for the repayment of the shortfall amount. A copy of the letter is
attached hereto as Annexure “D2”.
[56] The picture thus far is that the respondent approached the applicant and
tendered the surrender of a motor vehicle purchased from the applicant. The
applicant then accepted that offer. This is set out in the sought introduction of
paragraph 8.1. The respondent, bearing in mind this is in dispute, wrote a letter
to the applicant proposing how the shortfall would be paid. This is set out in the
proposed introduction of paragraph 8.3.
[58] From the pleadings, the basis for objecting against the introduction of
paragraph 8.3. is that the offer to pay off the shortfall was made by Northend
and not the respondent24. Since this is at the core of the respondent’s objection,
it can easily be dealt with by way of consequential amendments, if any. There
will be no prejudice on the respondent, were the proposed amendment to be
allowed in that the trial court is better placed to deal with the dispute. I find
therefore that the objection to the sought introduction of paragraph 8.3. is
without merit.
[59] Paragraph 8.2. which is sought to be introduced and in turn introduces
“D1”, a letter written by the applicant to the respondent about the release of
registration papers of the motor vehicle, payment of R350 000-00 as well
signature of an acknowledgement of liability for the shortfall. As mentioned
above, “D2” dated 20 February 2019, disputed as it is, was prepared after the
24 CaseLines 7-8 paragraph 14
respondent had had a discussion with the applicant. The response to it is
contained in “D2”. The interconnectedness between 8.1., 8.2. and 8.3. is
undoubtedly undeniable. I find that the objection to the sought introduction of
8.2. is without merit. That will be clearer when I juxtapose the objections with
the requirements set out in Commercial Union Assurance Co. Ltd v Waymark
NO, which I proceed to do below.
[60] This court has a wide discretion which it must exercise judiciously. It will
always permit an amendment unless if firstly, it is made mala fide. The
respondent’s case is not that the application is made mala fide. The case is that
the applicant seems to be relying on different causes of action; if allowed it will
render the particulars of claim excipiable; that there was lack of clarity as to
which cause of action was being relied on by the applicant and that the
amendment was not in compliance with Rule 18(6). Secondly, that the
amendment would result in an injustice which cannot be compensated by an
appropriate cost order. It is also not the respondent’s case and/or argument that
the amendment would result in an injustice.
[61] In resisting summary judgment and when raising the defences which the
respondent contended were bona fide, the respondent indicated that they
brought about triable issues 25 . It is trite that one of the requirements for
consideration in an application for amendment is that there must be an
explanation for the amendment and that the amendment will bring about triable
issues. It is ostensibly so that even on the respondent’s version there is a triable
issue that will be introduced by the amendment and that as a result, there will be
a proper ventilation of the dispute between the parties. Proper ventilation would
25 CaseLines 7-5 paragraphs 8 and 9.4.
include the interpretation of “D1” and “D2” as well as common cause facts set
out in the proposed introduction of paragraph 8.1. In so far as the explanation
for the amendment is concerned, the applicant advances the explanation that the
purpose is simply to amplify as opposed to replace the cause of action and that
the cause of action remains the same. The amplification is in my view apparent
in the assessment of what is at the core of the proposed amendment/s. Firstly,
the common cause explanation that the respondent approached the applicant
with an offer to surrender the vehicle, which offer was accepted. Secondly, the
letter by the applicant to the respondent dealing with registration documents of
the motor vehicle, payment of the R350 000-00 as well as the signing of certain
documents. Lastly, the offer to pay the shortfall, though disputed.
[62] I conclude that the objection to the proposed amendment which will
introduce paragraphs 8.1., 8,2. and 8.3. is without merit, for reasons set out
above. The result is that the application in terms of Rule 28(4) must succeed. I
will deal with the costs aspect of the Rule 28(4) application later, as I turn to the
counter claim or counter application.
Counter application
[63] The counter-application or counterclaim by the respondent has its origins
in the application for summary judgment. The respondent makes the following
case;
63.1. After the summons were served on the respondent, he entered an
appearance to defend and thereafter pleaded on or about 31 March 2021;
63.2. On 23 April 2021 the applicant launched an application for
summary judgment;
63.3. The affidavit resisting summary judgment was filed on 23 August
2021;
63.4. On 31 August 2021 the respondent filed heads of argument in the
application for summary judgment which was set down for hearing on 01
September 2021;
63.5. The respondent makes the following point26;
“The applicant did not file heads of arguments herein, demonstrating
that there was never an intention to pursue the matter, and further that
the application for summary judgment was brought solely for the
purpose of accumulating costs.”
63.6. That it was six months later and after the respondent was granted
leave to defend, that the applicant filed the application to amend the
particulars of claim,
63.7. That he had to incur legal fees when pleading, when opposing the
application for summary judgment, the drafting of opposing papers,
briefing of counsel and attending court in circumstances where the
applicant failed to tender costs;
63.8. That the applicant is a large corporate entity with unlimited
resources to fund unending litigation on one hand and on the other that
he, the respondent, was in no similar position. The respondent asserts that
the applicant by launching the application for summary judgment as well
as the application for leave to amend the particulars of claim, wants to
deplete his resources and force him into a settlement;
63.9. Further, that he needs to be shielded from the applicant’s
unmeritorious and vexatious litigation as well as the non-compliance with
the Uniform Rules of Court;
[64] The respondent reasons that in launching the application for summary
judgment as well as the application for leave to amend the particulars of claim,
26 CaseLines 3-8 paragraph 10.1.6.
the applicant is litigating vexatiously, especially because the applicant, it was
argued, litigated without a tender for costs. That is the reason why, the court is
asked to declare the applicant a vexatious litigant.
[65] In a subsequent notice of counter-application, dated 01 June 2022, the
respondent sought the following, orders;
“1. In the event of the Court granting an order in terms of rule 28(4), the
applicant is to pay the respondent’s costs on an attorney and client scale from
inception of the litigation up to granting of the order in terms of rule 28(4);
2. The applicant to pay the costs of this application;
3. Further and/or alternative relief.”
[66] The applicant contends that the respondent has failed to demonstrate that
circumstances surrounding the summary judgment application and the
subsequent filing of an application for leave to amend is an abuse of court
processes and therefore vexatious. The applicant is of the view that the
respondent has not placed facts before court to show that the litigation by the
applicant is unmeritorious.
[67] It was necessary to proceed by way of summary judgment, it is contended
by the applicant, so that the respondent could place under oath his defence, if
any. The fact that the respondent insisted that whatever payment he made was
in full and final settlement is evidence, it was argued, of the fact that the
application for summary judgment was justified. It cannot be said that the
application was vexatious. The same goes for the application for an amendment
which was necessitated by the fact that the respondent insists on denying
knowledge of payment of the shortfall.
Discussion
[68] It must be noted that as indicated above, at the center of the respondent’s
application to have the applicant declared a vexatious litigant is the launching
of the summary judgment application. The respondent argues that the conduct
of the applicant in launching the application and at the last minute agreeing to
grant the respondent leave to defend, together with failure to tender costs,
amounts to vexatious litigation.
[61] What is clearly apparent is that there are no multiple cases involving the
same parties. There is only one case, under the case number 5393/2021.
Distilled from Bisset and Lawyers for Human Rights v Minister in the
Presidency and Others, is that there are two requirements, namely, firstly, that
one must persistently institute legal proceedings and secondly that such
proceedings should be without reasonable or probable cause. There are other
requirements such as not bringing proceedings in good faith, bringing
proceedings to annoy or embarrass the opponent, initiating proceedings that are
not likely to bring about a procedural result and lastly bringing proceedings that
amount to an abuse of process which process the court guards jealously.
[62] In this matter there is no persistent institution of legal proceedings. In the
context of this matter, the launching of an application for summary judgment
cannot by any logic be said to be persistent litigation nor can it be said that the
application was launched without reasonable grounds. This is because it
extracted from the respondent that which on his own version he described as a
triable issue and it led to leave to defend being granted. The application was
therefore not mala fide, annoying or meant to embarrass the respondent. The
application led to a procedural result, namely, the order for leave to defend by
Phahlane J on 01 September 2021. It follows that the launching of the summary
judgment application was not vexatious.
[63] The respondent extended the ambit of vexatious litigation to the
application for leave to amend, the main application. I have above dealt with
the objection to the application for leave to amend the particulars of claim. I
have gone further and found that the objection was not meritorious. It follows
as a matter of logic that the application for leave to amend cannot be vexatious
if the objection thereto was without merit and leave to defend was granted.
[64] The other reasons advanced as part of the respondent’s contention that a
case has been made for the applicant to be declared a vexatious litigant, such as
the submission that the applicant is a corporate entity with unlimited resources,
which is a fact. It is also a fact that the respondent had to incur fees in drafting
pleadings and opposing papers in the summary judgment application. These
two facts whether viewed individually or together, do not support nor do they
bolster the respondent’s contention that the applicant is a vexatious litigant.
They are irrelevant for purposes of determining if a litigant is vexatious.
[65] The remaining two points of argument, firstly, that the applicant should
be declared a vexatious litigant because in launching the application for
summary judgment as well as the subsequent application for leave to amend the
particulars of claim, the applicant was intent on depleting his resources and thus
force him into settlement. Secondly, that the applicant should be declared a
vexatious litigant so that he, the respondent, can be shielded from the
applicant’s non-compliance with the Rules, are totally nonsensical. A litigant
cannot seek to be shielded from his opponent’s non-compliance with the Rules
by an order declaring the opponent a vexatious litigant. The two have nothing to
do with each other. Similarly, a litigant has to finance his/her own litigation. A
litigant who wishes to pursue a particular cause of action in the course of
litigation, which is permitted in law and which is not made in bad faith, is at
liberty to do so without considerations of resources of his/her opponent. It
would amount to an absurdity were a court to declare a litigant vexatious
simply because that litigant is a corporate entity with unlimited resources, the
litigation has the effect of depleting the resources of the opponent and when the
litigant does not comply with the Rules the opponent be protected from non-
compliance by declaring that litigant a vexatious litigant. There are sufficient
safeguards in the Uniform Rules of Court to adequately deal with non-
compliance with the Rules. Declaring a litigant vexatious is not one of them.
[66] The facts that the respondent relies on, as well as case law, fall short and
do not support the contention that the applicant is a vexatious litigant and
should be so declared. It follows that the application must fail.
[67] As part of the counter-application, the respondent prayed that costs be
awarded against the applicant “to pay the respondent’s costs on an attorney and
client scale from inception of the litigation up to granting of the order in terms
of rule 28(4)”. I will deal with the costs aspect when I deal with the costs of the
various applications as I do below.
Costs
[68] The first award of costs to consider are those associated with the point in
limine raised by the respondent. The point in limine was abandoned very late in
the proceedings after it had been fully argued. Counsel for the respondent
submitted that the respondent can be mulcted with costs but on a magistrate’s
court scale, reason being that the applicant simply did a “cut and paste”, in
preparing the application. The respondent’s challenge of the authority of the
applicant’s legal representative, is an area of the law that is well settled and was
without merit. I have already found that the challenge, though abandoned with a
halfhearted tender of costs on a magistrate’s court scale after full argument, was
without merit. I am of the view that a cost order on attorney and client scale is
justified.
[69] With regard to the application in terms of Rule 28(4) the finding made by
this court is that the applicant be granted leave to amend and the grounds
advanced in opposing the application are without merit. What remains is the
determination of the costs aspect. As a general rule costs follow the result
although there are certain exceptions. One such exception being reserved costs
which I will get to shortly. In the notice of application for leave to amend, the
applicant sought costs against the respondent in the event the application was
opposed. Counsel for the applicant argued that the respondent’s opposition to
the application was frivolous and counsel for the respondent argued that both
the application for summary judgment and the application for leave to amend
are both frivolous and vexatious. Each party is seeking costs against the other
on the punitive attorney and client scale.
[70] Costs in an application for leave to amend are ordinarily borne by the
applicant in terms of Rule 28(9). Since the application is opposed and since
both parties are seeking an award of costs against the other on a punitive scale,
the court must look at and make a determination whether opposition of the
application was warranted or put differently, whether or not it was frivolous or
vexatious. The bases for the objection must be considered in order to make that
determination, as I do below.
[71] The respondent contends that the amendment, if allowed, would render
the particulars of claim excipiable for the following summarised reasons;
71.1. It is unclear if the motor vehicle was sold;
71.2. It is unclear when the motor vehicle was sold;
71.3. It is unclear what the shortfall to be paid is;
71.4. It is unclear if the applicant took into account the R350 000-00 in
the event the motor vehicle was sold;
71.5. It is not clear if there is a shortfall to be paid by the respondent if
the R350 000-00 was received;
71.6. It is unclear if the applicant still seeks the full R352 306-00 if the
motor vehicle a been sold;
71.7. It is unclear if the R350 000-00 was received by the applicant from
the sale of the motor vehicle;
71.8. It is unclear if the applicant was proceeding on the arrears as per the
particulars of claim or the shortfall amount as per the proposed
amendment.
71.9. It is unclear if the applicant was proceeding on the surety agreement
or the acknowledgment of debt for the shortfall.
[72] In Gcanga v Mutual Insurance Association Ltd.27, the court found, in the
context of unreasonable objection to the proposed amendment, that the
objection was unwarranted and unreasonable, the objecting party was then
27 Gcanga v Mutual Insurance Association Ltd 1979 (3) SA 320 (E)
ordered to pay costs of the application for leave to amend, albeit on a party and
party scale. The principle is clear, where an objection is found to be
unwarranted and unreasonable, the objecting party will be mulcted with costs.
The scale of costs to be awarded will depend on the facts of each case and
whether a punitive scale is warranted.
[73] The nine grounds on which the respondent’s objection to the proposed
amendment is anchored, all of them suggest that the amendment if allowed will
bring about uncertainty in some form, to the particulars of claim and the cause
of action by extension. There are three areas of uncertainty, namely, sale of the
vehicle, the shortfall as well the cause of action.
Sale of the motor vehicle
[74] The respondent raised five areas of uncertainty under the above heading;
74.1. It is unclear if the motor vehicle has been sold;
74.2. It is unclear when the motor vehicle was sold;
74.3. It is not clear if the applicant took into account the R350 000-00 in
the event the motor vehicle was sold;
74.4. It is not clear if the applicant still seeks the full R352 306-00 if the
motor vehicle was sold;
74.5. It is not clear if R350 000-00 was received by the applicant from
sale of the motor vehicle.
[75] It is common cause that the applicant is proceeding against the respondent
on the basis of a suretyship. The uncertainty or lack of clarity which the
respondent contends exists about sale of the motor vehicle, if it is indeed
uncertainty or lack of clarity, was in existence when the respondent pleaded to
the particulars of claim and also when the respondent prepared an affidavit
resisting summary judgment. The lack of clarity or the uncertainty that the
respondent relies upon as the basis for objecting to the proposed amendment
and which the respondent contends will render the particulars of claim
excipiable, is therefore contrived and lacks merit. It is raised at this stage for no
other reason other than to oppose the application for leave to amend the
particulars of claim.
The shortfall
[76] The respondent raised three areas of uncertainty about the shortfall which
are that;
76.1. It is unclear what the shortfall to be paid is;
76.2. It is not clear if there is a shortfall to be paid by the respondent if
the amount of R350 000-00 was received by the applicant;
76.3. It is unclear if the applicant was proceeding against the respondent
on the arrears as per the particulars of claim or the shortfall as per the
acknowledgment of debt.
[77] The respondent pleaded emphatically in his plea that the sum of
approximately R350 000-00, which was paid by, him was in full and final
settlement. In other words that there was no shortfall and that there never could
have been because of payment of the R350 000-00. The parties’ pleaded cases
show that there was a sum of R11 000-00 which paid by the “debtor”. The
respondent pleaded in turn that the amount could very well have been
overpayment by the liquidators. At the core of the amendment sought by the
applicant to introduce communication between the parties, paragraphs 8.2. and
8.3, is the contention that the respondent was at all material times aware about
existence of a shortfall, hence “D1” and “D2” mentioned in the notice of
application for amendment. To seek to introduce knowledge of existence of the
shortfall is about amplification of the claim by the applicant and is not
prejudicial to the respondent. It does not render the particulars of claim
excipiable.
Surety agreement or acknowledgment of debt?
[78] The last point on which the respondent relies in arguing that the
amendment if allowed would render the particulars of claim excipiable, is that it
is unclear if the applicant was proceeding on the surety agreement or the
acknowledgment of debt for the shortfall. The lack of clarity is contrived. There
is no acknowledgment of debt as far as I understand the facts of this case. The
applicant’s case has been and remains, as its basis, the suretyship. The
contention that the particulars of claim would be excipiable because, among
other reasons, it is not clear if the cause of action is the suretyship or the
acknowledgment of debt, in circumstances where there is no acknowledgment
of debt concluded between the parties, leads me to conclude that opposition of
the Rule 28(4) application, on this ground, is frivolous and vexatious.
[79] In Hart v Broadacres Investments Ltd. 1978 (2) SA 47(N) Hefer J had
occasion to say the following on the issue of punitive costs orders in
applications for amendment;
“Naturally, as has often been stated, the grant of an amendment is an indulgence to
the party requiring it, which entails that he is generally liable for all the costs
occasioned by or wasted as a result of the amendment. These costs have sometimes
been held to include ‘the costs of such opposition as is in the circumstances
reasonable and not vexatious or frivolous’(per van Winsen AJ (as he then was) in
Myers v Abramson 1951 (3) SA 438 (C) at 455… In other cases, however, the costs
of unsuccessful opposition were not so included and the unsuccessful objector was
ordered to pay the costs occasioned by his opposition even though it was not
considered unreasonable or vexatious or frivolous (See e.g. Wahlen v Gramowsky
1924 SWA at 52; Moolman v Estate Moolman 1927 CPD 27 at 29)…It seems to me,
when it comes to deciding in any particular case whether the party to whom an
indulgence is granted is to pay the costs of opposition, that the recognition of a single
criterion for liability (such as the reasonableness of the opposition) tends to hamper
the exercise of the unfettered judicial discretion which a court has in its award of
costs. The exercise of that discretion is, after all, essentially a matter of fairness to
both sides (Gelb v Hawkins 1960 (3) SA 687 (A) at 694; Ward v Sulzer 1973 (3) SA
701 (A) at 706), and a criterion which may be useful in one case may in other cases
not have the desired fair effect.”
[80] The Constitutional Court in Mkhatshwa and Others v Mkhatshwa and
Others28, per Khampepe J, stated the following with regards to punitive costs
on the attorney client scale:
“Generally speaking, punitive costs orders are not frequently made, and exceptional
circumstances must exist before they are warranted. In SARB, [being a reference to
the matter of Public Protector v South African Reserve Bank [2019] ZACC
29; 2019 (6) SA 253 (CC)], this Court affirmed the following guiding principles in
relation to punitive costs, elucidated by the Labour Appeal Court in Plastic
relation to punitive costs, elucidated by the Labour Appeal Court in Plastic
Converters Association of SA: ‘The scale of attorney and client is an extraordinary
28 Mkhatshwa and Others v Mkhatshwa and Others (CCT 220/20) [2021] ZACC 15; 2021 (5) SA 447 (CC); 2021 (10)
BCLR 1182 (CC) (18 June 2021)
one which should be reserved for cases where it can be found that a litigant
conducted itself in a clear and indubitably, vexatious and reprehensible manner. Such
an award is exceptional and is intended to be very punitive and indicative of extreme
opprobrium.’”.
[81] In this matter the respondent raised a point in limine that lacked merit in
that objection was raised against the legal representative of the applicant. It was
argued that the legal representative lacked the requisite authority to act on
behalf of the applicant. The point was later abandoned by counsel for the
respondent and costs were tendered on the magistrate’s court scale after the
point was fully argued. I may add that it was after it was clear that the wrong
procedure to challenge authority was used and no authority was tendered by the
respondent for the chosen procedure. The abandonment came when it was clear
that the respondent was going to lose the in limine point. This is deserving of
censure.
[82] The application for leave to amend brought by the applicant was opposed
by the respondent. The proposed amendments as well as the grounds for
opposing the application were vigorously examined and considered by this
court. This court found that some of the proposals were common cause and that
in total the respondent would not be prejudiced were the amendments to be
allowed. The grounds for opposing the application for leave to amend were
found to have been contrived, frivolous and vexatious.
[83] Pretorius AJ, relying on Gcanga said the following about the
reasonableness of objection to the proposed amendment and the effect or
influence it has on costs;
“[18] In the matter of Gcanga v Mutual Insurance Association Ltd, it was held that it
is implicit in the procedure prescribed in Rule 28 that an objection to a notice to
amend must be reasonably and responsibly taken. If an objection is taken merely to
inconvenience the litigant seeking the amendment, or in an attempt to compel the
amending party to incur the costs of an application to Court, when the opposing party
has no real grounds for objecting and either does not appear in Court at all to oppose
the application or appears and raises some frivolous objection, then the Court will be
likely to order the objecting party to pay all the costs in respect of the
application. The fact that the opposition to a proposed amendment is reasonable does
not necessarily entitle the opposing party to an order for costs. Unsuccessful
opposition to a proposed amendment may result in the objecting party being ordered
to pay the costs notwithstanding the fact that the opposition was reasonable. Eksteen
J also stated the following:-
‘On the other hand, I do not want to be understood as to mean that as a general
rule costs in such applications will follow the result, or that in certain
circumstances the respondent might not be ordered to pay the costs of
opposition, or even that the opposition might be able to have been so
reasonable as to warrant an order that the applicant pay all the costs. Each case
in my view must depend on its own merits and the discretion of the Court to
make an order which is fair in all the circumstances must remain unfettered.’”
[84] I find that it was unreasonable to oppose the application for leave to
amend and that a cost order on a punitive scale is justified.
[85] The application to declare the applicant a vexatious litigant lacked merit.
The respondent failed to demonstrate that he was entitled to the relief sought,
given the requirements of statutes, case law and established legal precedence. It
given the requirements of statutes, case law and established legal precedence. It
therefore lacked merit and has hallmarks of a kneejerk reaction. It has to fail
and is deserving of a punitive cost order.
[86] Lastly, the respondent sought a costs order against the applicant from
commencement of the matter up until the Rule 28 (4) application, on a scale as
between attorney and client. I have to confess that I have never heard of such
relief sought during hearing of an interlocutory application. The respondent
could not provide any authority for such a far reaching and unprecedented relief
he sought. In addition, costs of the summary judgment application were
reserved for later determination. It is not clear from the record if this was by
agreement or if they were argued but reserved. Be that as it may, none of the
parties, particularly the respondent, being the person seeking relief, clarified
what the correct position was, i.e. whether the costs were reserved by
agreement or after they were argued but were nevertheless reserved. What is
clear however is that counsel for the applicant attended court.
[87] In the result, and for the reasons stated above, I find that the point in
limine must fail, the application for leave to amend must succeed, the counter
application to have the applicant declared a vexatious litigant must fail and that
the respondent must pay the costs on a punitive scale, that of attorney and
client.
Order
[88] The following order is made;
1. Leave to amend the applicant's particulars of claim in accordance with
the notice to amend in terms of Rule 28(1) of the Uniform Rules of Court
dated 24 January 2022 is granted with costs on the scale as between
attorney and client.
2. The respondent’s counterapplications are dismissed with costs on the
scale as between attorney and client.
__________________________
SA THOBANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For Applicant : ADV. S F FISHER-KLEIN,
Instructed by : VELILE TINTO & ASSOCIATES INC.
PRETORIA
For Respondent : ADV. R ANDREWS,
Instructed by : COMBRINK NEL AND ASSOCIATES
RANDBURG
Date of judgment: 24 AUGUST 2026 - This judgment was handed down
electronically by circulating to the parties’ legal representatives by e-mail, by being
uploaded to the CaseLines platform of the Gauteng Division and by release to
SAFLII. The date and time of hand down is deemed to be 10:00 on 24 AUGUST
2026.