Cherangani Trade and Invest 50 (Pty) Ltd v Razzmatazz (Pty) Ltd and Another (2795/2018) [2020] ZAFSHC 100 (28 May 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 2795/2018

In the matter between:

CHERANGANI TRADE & INVEST 50 (PTY) LTD Plaintiff And RAZZMATAZZ CIVIL (PTY) LTD RICHARD WILLIAM PARKER 1st Defendant 2nd Defendant

CORAM: DAFFUE, J

HEARD ON: 28 MAY 2020

JUDGMENT BY: DAFFUE, J

DELIVERED ON: 28 MAY 2020

I INTRODUCTION

[1] On 4 June 2018 applicant instituted action as plaintiff against 1st respondent, cited as 1st defendant, wherein it claimed payment in the amount of R1 244 854.76, being the purchase price pertaining to the sale during 2017 of a number of interlocking paving and kerb stones, plus interest and costs. 2nd Respondent, the 2nd defendant in the main action, was cited in his capacity as alleged surety for the indebtedness of 1st defendant and accordingly, plaintiff sought payment against 1st and 2nd defendants jointly and severally.

[2] Upon receipt of a notice to defend the action and a notice of intention to except in terms of rule 23, plaintiff filed several

notices of intention, the one after the other, in an attempt to amend its particulars of claim. In all instances defendants objected to the proposed amendments whereafter the first three notices were withdrawn. The fourth and latest notice of intention to amend dated 20 September 2019 is the subject of this application.

II THE PARTIES

[3] Applicant in this application and the plaintiff in the main action is Cherangani Trade and Invest 50 (Pty) Ltd, trading as 3 Brick. Adv SJ Reinders appeared for the applicant.

[4] 1st respondent is Razzmatazz Civil (Pty) Ltd and 2nd respondent is Mr Richard William Parker, a director of 1st respondent. The respondents are cited as 1st and 2nd defendants in the main action. They were represented by Adv C Snyman.

In order to avoid confusion, I shall throughout this judgment refer to the parties as in the main action.

III THE RELIEF SOUGHT

[5] At a glance plaintiff’s proposed amendment appears to be extensive insofar as it is requested that the existing paragraphs 5 - 22 (inclusive of the prayers) of the particulars of claim be deleted and replaced with what may be referred to as a totally new particulars of claim.

[6] However, if one considers the allegations contained in the proposed amended particulars of claim, it soon becomes apparent that

plaintiff’s cause of action still remains the same, to wit the sale of interlocking paving and kerb stones by plaintiff to 1st defendant during 2017 and in respect of which an amount is still indebted to plaintiff. Also, it remains plaintiff’s case that 2nd defendant bound itself as surety and co-principal debtor for all amounts due and payable by 1st defendant to plaintiff.

[7] In prayer 1 of the notice of motion plaintiff seeks an order amending its particulars of claim in accordance with an intention to amend dated 22 August 2019. Clearly, this is a mistake which has not been picked up by the parties insofar as the latest notice of intention to amend, a copy of which is attached to the application for amendment as annexure “FA1”, is dated 20 September 2019.

IV HISTORY OF THE LITIGATION

[8] On 7 October 2019 and upon delivery of the notice of intention to amend, defendants objected thereto, as they did previously in respect of all other notices. This application should have been filed on 21 October 2019[i], but instead, it was filed on 26 November 2019 and thus 26 court days late.

[9] On 29 October 2019 and having considered the notice of objection, plaintiff’s attorneys served annexure “POC 1”,

which was not attached to the proposed amended particulars of claim, on the defendants’ attorneys.

[10] Defendants filed their notice of intention to oppose the application on 3 December 2019 and on 6 December 2019 the matter that was set down for hearing on 12 December 2019 was removed from the roll.

[11] Instead of launching an application in terms of rule 30 as they could have done, defendants filed their answering affidavit on 6 January 2020 to which plaintiff responded in delivering its replying affidavit on 21 January 2020. No reasons have been advanced why this matter was not set down for hearing in February or March, i.e. before the announcement of the lockdown which became effective on 26 March 2020.

V THE OBJECTIONS

[12] Two objections are raised in the notice of objection and a third objection appears from the answering affidavit. These can be summarised as follows:

First objection:

12.1 Defendants aver that the intended amendment seeks to replace the existing cause of action insofar as plaintiff now wishes to rely on a purported oral agreement for the future sale and delivery from time to time of an unknown number of interlocking paving and kerb stones at plaintiff’s usual purchase price. Defendants allege that the proposed cause of action does not contain any allegations pertaining to the terms of the sale agreement relating to the number of interlocking paving and kerb stones and price at which these were to be sold. Instead, it is alleged that plaintiff merely avers that interlocking and kerb stones in a total amount of R2 633 051.80 were sold to defendant from time to time during the period of 29 May 2017 to 22 August 2017 and that plaintiff performed all its obligations.

12.2 It is defendants’ case that if the amendment is allowed, the amended particulars of claim would be vague and embarrassing and susceptible to exception, alternatively it would be irregular for non-compliance with rule 18(6), alternatively susceptible for exception insofar as no complete cause of action is averred.

Second objection:

12.3 The deed of suretyship, attached to the existing particulars of claim, was not attached to the proposed amended particulars of claim when the notice of intention to amend was delivered. Therefore, if the proposed amendment is allowed with the exclusion of the deed of suretyship as should be the case, the amended particulars of claim will again be vague and embarrassing and susceptible to exception, alternatively it would be irregular for non-compliance with rule 18(6), alternatively susceptible for exception insofar as no complete cause of action is averred.

Third objection

12.4 Upon perusal of the answering affidavit filed on behalf of defendants, it becomes clear that they also rely on the fact that the plaintiff’s application for amendment was filed hopelessly out of time and plaintiff’s delivery of the deed of suretyship under cover of a letter afterwards in an attempt to cure the defect cannot be condoned. They object to the informal delivery of annexure “POC1,” the deed of suretyship. The further allegations contained in the answering affidavit will be dealt with during the evaluation of the application.

VI PRINCIPLES RELATING TO AMENDMENTS

[13] It is common cause that a court has a discretion whether or not to grant an application for amendment, which discretion must be exercised judicially.

[14] In my view it is a constitutional imperative that fairness and equity prevail in litigation between parties. That means that a presiding officer should strive to ensure that justice is done. If one of the parties seeks an amendment, especially when it is done timeously, it should generally be considered favourably if a proper ventilation of the disputes between the parties will be achieved in granting the amendment.[ii]

[15] The court is empowered to allow amendments, and even material amendments, subject to the limitation of prejudice or injustice to the other side.

[16] The issue of prejudice has been dealt with in numerous judgments as well as articles published by academic writers.[iii] I do not intend to deal with any of the issues which are really common cause.

[17] A court is entitled to incorporate fresh causes of action in original proceedings, subject again to the limitation that there should be no prejudice occasioned thereby.[iv] In any event, in order to consider whether a party tries to introduce a new cause of action, the court has to consider whether that party does not merely try to introduce new facts supporting the original right of action as set out in the cause of action.[v]

[18] Amendments may be granted at any time before judgment and even on appeal, although strict principles apply in such cases. It is not necessary to delve into such a situation any further, bearing in mind that plaintiff seeks an amendment at a stage when the defendants have not even pleaded.

VII EVALUATION OF THE FACTS AND THE PARTIES’ SUBMISSIONS

[19] It is necessary to say something about non-compliance with the Rules of Court. Plaintiff filed its application outside the 10 day period provided for in the rules. Mr Snyman submitted that plaintiff’s non-compliance with the rules should not be condoned and the application be dismissed solely on this basis. He relied on numerous judgments which he believes support his argument. I shall deal with all of them.

[20] Unnecessary technicality should be avoided during litigation as reliance thereon by a litigant is often aimed at trying to evade a judgment on the merits and more often than not, the party relying on a technicality knows full well that he/she does not have a proper defence on the merits.

[21] A court should opt for a pragmatic approach in matters of this nature. It often happens during the course of litigation that attorneys fail to attach annexures to their pleadings and very seldom a point is made about this, especially where one can rely on the collegiality of your colleagues. Obviously, rule 28 does not provide for an informal procedure as undertaken on behalf of the plaintiff, but in my view the defendants’ attitude in this regard is nothing but a desperate attempt to raise a technicality in order to delay the filing of further pleadings and the ultimate trial. Defendants have not shown any prejudice pertaining to the informal delivery of annexure “POC1” and this is so for obvious reasons: there is just no prejudice.

[22] Rules, and all legislation for that matter, must be complied with strictly. I am always advocating for proper compliance.

Non-compliance by all and sundry will cause the country to become a failed society. The same general principles apply to the legal fraternity as well. I equally echo the sentiments expressed by esteemed judges in so many judgments. I am also concerned that a lackadaisical approach has surfaced over the last two decades. This should not be tolerated at all. Having made my views clear, as both counsel in this matter are fully aware of, I accept that any lawyer in practice knows that it is very often impossible to comply with the Rules of Court pertaining to time periods.

[23] I am satisfied that this court may waive compliance with the rules in certain instances without an application for condonation. The Constitutional Court[vi] confirmed a few years ago the age-old saying that rules of court are tools to facilitate access to courts, rather than hindering it. The rules are made for the courts and not vice versa. More recently that court dealt with the subject again in similar fashion in Eke v Parsons.[vii] The primary function of the rules is the attainment of justice and I repeat what I stated supra when dealing with the principles regulating amendment of pleadings.

[24] There is no formal application for condonation by plaintiff and no reasons have been advanced under oath for non-compliance with the Rules of Court. Mr Reinders referred to rule 28(10), Eke v Parsons[viii] as well as SABC Soc Ltd v SABC Pension Fund and others[ix] in submitting that an application for condonation is not required and the merits before the court should be adjudicated. I am satisfied that bearing in mind the delays already caused herein and defendants’ obvious tactics to make it as difficult for plaintiff as possible to obtain finality, compliance should be waived, or put differently, non-compliance should be condoned. I do so and therefore, I am prepared to deal with the merits of the application in order to ensure that the parties come closer to adjudication of the merits of the main dispute. I need to be concerned about real justice and not technicalities, but in all fairness to defendants, I decided to consider the judgments relied upon by Mr Snyman.

[25] Mr Snyman referred to Standard General Insurance Co Ltd v Eversafe (Pty) Ltd & Others.[x] In that case the plaintiff filed its replication a mere four days late and sought condonation for such lateness on the basis that its attorney was relocating at the time and could not comply with the Rules of Court. The application for condonation was dismissed. I do not agree with that judgment and would never have disallowed an opportunity to the plaintiff to meaningfully respond by way of replication in such circumstances. There was no indication that the defendant would be prejudiced or that the trial court would eventually be inconvenienced as a result of non-compliance.

[26] Mr Snyman also referred to Grootboom v National Prosecuting Authority & Another.[xi] While I agree with the sentiments of the Constitutional Court that “condonation cannot be had for the mere asking,” there is no doubt that a court has a judicial discretion and must consider the facts before it in each and every case instead of relying on an attitude that all non-compliance of the rules should be dealt with impunity. In Grootboom the respondents filed their answering affidavits late, causing the court to refuse condonation based inter alia on its reasoning that the effective and efficient running of courts should not be undermined. It was also severely critical of the fact that the particular State organ failed to comply with the court’s rules.[xii] The lateness caused prejudice and inconvenience to the appellant as well as unnecessary inconvenience to the judges of the court. In casu, the pleadings have not been closed; in fact, defendants must still file their pleas. It would not be necessary to amend any of their pleadings as a consequence and thereby incurring extra costs.

[27] In Van Wyk v Unitas Hospital and another (Open Democratic Advice Centre as amicus curiae)[xiii] the Constitutional Court refused to hear an application for leave to appeal which was filed about 11 months late. It held that inordinate delay induced the reasonable belief that the order was unassailable and I quote:

“[31] There is an important principle involved here. An inordinate delay induces a reasonable belief that the order had become unassailable. This is a belief that the hospital entertained and it was reasonable for it to do so. It waited for some time before it took steps to recover its costs. A litigant is entitled to have closure on litigation. The principle of finality in litigation is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation, would undermine the principle of finality and cannot be in the interests of justice.”

No doubt, the facts are completely distinguishable from those in casu.

[28] I am satisfied that the matter is also distinguishable from Alsa Construction (Pty) Ltd v Buffalo City Metropolitan Municipality[xiv]. In that case the court held at paragraph 13:

“It was thus impermissible for the court a quo to have entered into and decided the merits of the review application without having first decided the merits of the condonation application.”

There was an extensive delay in launching the review application. There are good reasons why parties are statutory obliged to launch review proceedings within the required time frame. Those reasons do not apply in this matter. Here we have to do with an interlocutory application for an amendment of a pleading and the merits of the dispute between the parties will only be considered sometime in the future.

[29] The reliance on Cape Town City v Aurecon SA (Pty) Ltd[xv] does not take the matter any further. In that case the City of Cape Town was more than 350 days late with its application for review of the award of a tender. The appellant municipality was obliged to apply for condonation in terms of s 9 of the Promotion of Administrative Justice Act (PAJA)[xvi] and for extension of the fixed period as non-compliance with the 180 day period was specifically raised by respondent. The

municipality failed to apply. In my view the judgment is again distinguishable on the facts. Notwithstanding the absence of a formal application for condonation, the Constitutional Court held, as did the SCA, that the informal explanation of the delay was unsatisfactory. The Constitutional Court held that s 237 of the Constitution stipulates that all constitutional obligations must be performed diligently and without delay and applications for review must be instituted without unreasonable delay.[xvii] Notwithstanding these comments, both courts adjudicated the merits of the review application and the Constitutional Court eventually held as follows:[xviii]

“[49] Nonetheless, due regard must also be given to the importance of the issue that is raised and the prospects of success. In this case, that means considering the significance of the alleged procedural irregularities that were raised in the Ernst & Young report.”

This judgment of the Constitutional Court does not support defendants’ submission that plaintiff’s application should be dismissed without further ado.

[30] De Bruyn v Mile Inv 307 (Pty) Ltd[xix] is yet another judgment relied upon by Mr Snyman. The court had to deal with an exception in terms of rule 23 which was filed late by the excipient. In that case the court held that the failure to comply with the prescribed time period was not a mere technical formality and that the consequences of failure were fatal to the exception. It then concluded that the failure to apply for condonation rendered the exception defective and a nullity.[xx] I can understand why judges are strict about non-compliance with rules such as rule 23 insofar as the failure to take an exception is not the end of the world and does not close the doors of the court for the excipient. The merits of the matter will be adjudicated eventually.

[31] What will the outcome be if this court dismisses the application on the basis of non-compliance with rule 28? Obviously, the plaintiff will have the right to again give notice of intention to amend its particulars of claim and in the case of objection, to bring yet another application for the amendment of the particulars of claim. This may well be opposed again, causing another court to consider the proposed amendment after hearing arguments pertaining to the merits of such application. Such a pointless waste of time, court resources and costs cannot be regarded as in the interest of justice, fair and equitable. Clearly finality must be reached in all litigation as soon as possible.

[32] In terms of the particulars of claim as it reads at this stage plaintiff relies on two written quotations given by plaintiff to 1st defendant dated 15 February 2017 and 26 May 2017 in respect of the sale of interlocking paving and kerb stones at prices indicated in the documents. It is also the plaintiff’s case that the items were in fact ordered by 1st defendant, then sold and delivered to it and that 1st defendant became liable to plaintiff in the amount claimed. Plaintiff also relies on a credit application form signed by 2nd defendant on behalf of 1st defendant and several delivery notes which were attached to the particulars of claim. Although plaintiff now seeks an amendment without referring to the quotations, credit application form and delivery notes, it would be entitled to rely on all these documents during the trial.

[33] The proposed amendment of the particulars of claim is summarised in the following terms:

1. An oral agreement of sale was entered into between plaintiff and 1st defendant represented by two identified persons. This occurred on 15 February 2017; (paragraph 5).

2. The agreement of sale concluded the following express, alternatively tacit, alternatively implied terms:

i. Plaintiff would sell and deliver interlocking paving and kerb stones to 1st defendant from time to time at plaintiff’s usual purchase price;

ii. Payment would be made within 30 days from date of plaintiff furnishing a statement to 1st defendant; (paragraph 6).

3. Plaintiff performed all its obligations in terms of the agreement in that it sold and delivered interlocking paving and kerb stones to 1st defendant at 1st defendant’s special instance and request during the period 29 May to 22 August 2017; (paragraph 7 of the particulars of claim).

4. The purchase price amounted to R2 633 051.80 and defendant made payments to plaintiff in the amount of R1 470 140.89; (paragraph 8 of the particulars of claim).

5. 1st Defendant is still indebted to plaintiff in the amount of R1 162 911.03, being the balance outstanding which is due and payable; (paragraph 9 of the particulars of claim).

6. 2nd Defendant executed a written deed of suretyship on 26 June 2017 in favour of plaintiff in accordance with annexure “POC1”;

(paragraph 11 of the particulars of claim).

[34] Plaintiff has to allege no more; proper causes of action have been pleaded. It is not suggested that the pleading is a perfect precedent, but Mr Snyman’s submission that the defendants are “seemingly deliberately kept in the dark” is without any merit. It is a fallacy that the defendants do not know what is in dispute between the parties. The reliance on Engelbrecht v Nel[xxi] is misplaced. In that case the parties entered into an instalment sale agreement pertaining to the sale of a business and other

property. The monthly payment of R2 500.00 reflected in the written contract was deleted as was the case with the applicable

interest rate of 18% payable on outstanding amounts. In substitution of the interest rate the words “bank overdraft

rate” were inserted. The court held that the interest rate was a material term and that it was indeterminable and uncertain. There is nothing uncertain in respect of plaintiff’s “usual purchase price.” Any customer entering any business will be able to ascertain at what price an item is presented for sale. Contrary thereto, “bank overdraft rate” is vague and uncertain: different banks offer different rates to a variety of customers.

[35] Mr Snyman relies on what he calls “very important remarks” in Xstrata Coal South Africa (Pty) Ltd v Sandvik Mining & Construction RSA (Pty) Ltd.[xxii] In that case Weiner J considered general principles in order to determine whether a pleading lacks the requisite particulars

rendering it vague and embarrassing or non-compliant with rule 18(4).[xxiii] No doubt, pleadings must be “lucid and logical” and the more complex the matter, the more detailed the particulars of claim should be. I agree that “the object of pleading is to enable each side to come to trial prepared to meet the case of the other and not to be taken by surprise.” This is merely a restatement of the law dating back to more than a century.

[36] Mr Snyman submitted during oral argument that the plaintiff’s proposed amendment, if allowed, would be a nullity as parties cannot legally agree to enter into a future agreement, the terms of which have not been agreed upon yet. I believe he tried to refer to the well-known Latin phrase, pactum de contrahendo. The legal principle is clear: a preliminary agreement to negotiate a further agreement is void for vagueness. In principle, subject to exceptions, a court cannot enforce an agreement to agree. The authority relied upon, Shepherd Real Estate Investments (Pty) Ltd v Roux le Roux Motors CC,[xxiv] does not support Mr Snyman’s argument at all. He placed particular emphasis on paragraph 16 of the judgment. I quote that paragraph and a portion of paragraph 17 for convenience of the reader:

“[16] Thus, although the position in relation to 'agreements to negotiate in good faith' remains a complex one in Australia in the light of Coal Cliff Collieries, courts there, like other comparable jurisdictions, will not enforce 'an agreement to agree'. That accords as well with the position in our law. As Schutz JA made plain in Premier, Free State, and Others v Firechem Free State (Pty) Ltd:

'An agreement that the parties will negotiate to conclude another agreement is not enforceable, because of the absolute discretion

vested in the parties to agree or disagree . . . . Such a discretion was vested in the parties as they were to sign a "contract"

the precise terms of which were not fixed in the letter of acceptance, which, unlike the action committee's recommendation, did

not refer to annexure B. As the Tender Board neither awarded a contract for the whole of the Free State nor exactly followed that

committee's recommendations as to demarcation, the elusive annexure B, whatever it did contain, could not have served as the contract to be signed. There was, accordingly, room for a breakdown in negotiations before a contract was concluded.

The position is similar to that described in Namibian Minerals Corporation Ltd v Benguela Concessions Ltd [1996] ZASCA 140; 1997 (2) SA 548 (A) at 567A – C:

"Since this provision was couched as a suspensive condition, it cannot, in my judgment, be said that the parties could have intended to have had a binding agreement simply upon the exercise of the option. They had expressly agreed that only a fuller arrangement would have bound them to the joint venture. Fulfilment of the condition was necessary and the condition required consensus of the parties. It is thus not a case where the exercise of the option would have given rise to a contract and that other terms would merely have been left for later negotiation and agreement. I therefore am of the view that the exercise of the option could not have given rise to a contract with certain or ascertainable terms and that on this ground the 'farm-in' clause is void for vagueness."'

[17] The proper approach in an enquiry such as the present depends upon the construction of the particular agreement. Accordingly, it becomes necessary to analyse the relevant paragraph to decide whether its proper characterisation is merely an agreement to agree or whether it contained legally enforceable obligations…..”

In casu there is no agreement to negotiate a new contract in future. The terms of the oral agreement concluded in February 2017 are set out in paragraph 6 of the proposed amended particulars of claim and in paragraphs 7 and 8 plaintiff avers sales and delivery

of identified items over a specified period at 1st defendant’s special request. The purchase price is pleaded and also that plaintiff complied with all its contractual

obligations.

[37] An aspect of concern that I would like to get out of the way, although defendants did not rely on this as a defence, is the possibility that an amended particulars of claim might be held to be excipiable on the basis that the principal debtor is not identified in the deed of suretyship, annexure “POC1.” The principal debtor’s name is not mentioned at all in the alleged suretyship. A contract of suretyship is formed by an agreement between a creditor and surety and the principal debtor does not have to be a party to this contract and need not even be aware of it.[xxv]

[38] One of the terms to be embodied in the written document signed by or on behalf of the surety is the identity of the principal debtor. In this regard a full bench of the Appeal Court (now the Supreme Court of Appeal) stated in Sapirstein v Anglo African Shipping Co SA Ltd[xxvi] that extrinsic evidence may be tendered in a situation where the written document does not contain all the terms of the agreement.

The court held as follows:

“In my view, there can be no objection to extrinsic evidence of identification being given, either by the parties themselves, or by anyone else, unless the leading of such evidence can be said to amount to an attempt to supplement the terms of the written

contract.”

More recently the Supreme Court of Appeal made it clear that the admissibility of extrinsic evidence in cases such as the present has been accepted as common cause. I refer to the judgment of Scott JA in Industrial Development Corporation of SA (Pty) Ltd v Silver.[xxvii]

[39] The plaintiff may well be able to prove at a hearing that 2nd defendant intended to and did in fact sign surety for 1st defendant. I have been presented with a bundle of additional pleadings and notices which includes the particulars of claim in its present form and annexures thereto. One of these documents, annexure “POC 2”, is a credit application form to which is attached a document with the heading, “Terms and conditions of sale”. This document embodies 1st defendant’s application for credit with plaintiff and is also dated 26 June 2017, as is the case with the alleged suretyship.

2nd Defendant is, ex facie the documents, the signatory to the credit application form as well as the attached document identified as terms and conditions of sale. Ironically, paragraph 20 of the terms and conditions of sale stipulates that the signatory to the application binds him or herself as surety and co-principal debtor in solidum with the customer in favour of the creditor for the due payment of all amounts which may at any time be payable by the customer to the creditor from any cause whatsoever. These documents will all be available for discovery and plaintiff would be entitled to make use of extrinsic evidence in order to prove a valid deed of suretyship by 2nd defendant in favour of plaintiff. Whether plaintiff will succeed to prove its case is not of any concern to this court. It is sufficient

to remark that plaintiff is entitled to an amendment to ensure that there will be a proper ventilation of the disputes between the parties at the trial.

[40] It is for the 1st defendant to plead, once the amendment is granted, whether it purchased interlocking paving and kerb stones from the plaintiff as alleged; if so, what according to it was the purchase price agreed upon, if at all. It should also inform plaintiff in its plea whether, on the understanding that it did in fact buy the items, these were not delivered, or in what other respects plaintiff failed to comply with its contractual obligations.

[41] 2nd Defendant on the other hand, is entitled to rely on all the defences raised by 1st defendant, but furthermore may plead several defences, inter alia that it did not enter into a deed of suretyship as alleged and/or did not sign the document, annexure “POC1,” and/or that he did not intend to bind himself as surety in favour of the plaintiff.

[42] The defendants’ right to except remains, but it is not for this court to foresee what may happen in such a case. Mr Snyman relied upon the judgment of Tebbut AJ in Crawford-Brunt v Kavnat & Another.[xxviii] However, the passage relied upon does not support defendants’ case at all insofar as they want to rely on the fact that an amendment should be refused if the pleading as amended would be excipiable. The particular passage reads as follows:[xxix]

“In Cross v Ferreira, 1950 (3) SA 443 (C), it was laid down that, save in exceptional cases where the balance of convenience or some such reason might render another course desirable, the Court will not allow an amendment to a pleading if the pleading as amended would be excipiable. It seems clear, however, both from a reading of this case and of subsequent cases in which Cross v Ferreira has been referred to, that such an amendment will only be refused on the ground that the amended pleading would be excipiable if it is clear that the amendment would obviously render the pleading excipiable.”

I reiterate that it is the law that an amendment shall not be refused, unless “it is clear that the amendment would obviously render the pleading excipiable”.[xxx] There must be quite a measure of certainty in this regard. This is most definitely not so in casu.

VIII CONCLUSION

[43] I am satisfied that the plaintiff has clearly set out the case the defendants have to meet. The fact that someone else might have drafted the particulars of claim differently and even if the drafter may be criticised to an extent, there is no doubt about the plaintiff’s case. There is no justification for the submission that plaintiff should have averred more detail in the particulars of claim. The proposed amendment is not excipiable, either because it is vague and embarrassing, or does not disclose a cause of action. I am also satisfied that if the document is amended, it would materially comply with the provisions of rule 18(6). It is time, now after two years, that the defendants shall plead to the particulars of claim to be amended.

IX COSTS

[44] A party applying for an amendment seeks an indulgence from the court. Often a successful applicant is ordered to pay the costs of opposition of the other party if the opposition is regarded reasonable. It may also be considered ordering the plaintiff to pay the costs on an unopposed basis, or each party to pay its own costs. I have considered these aspects thoroughly. However, bearing in mind the history of the matter and the facts presented to me, I am satisfied that the defendants unreasonably elected to stay the litigation in relying on technicalities, thereby avoiding expedient adjudication of the real dispute between the parties. Consequently, plaintiff as the successful party shall be entitled to the costs of the application.

[45] Prayer 1 of the notice of motion incorrectly refers to a notice of intention to amend dated 22 August 2019. It is common cause that the correct date of the notice is 20 September 2019.

X ORDERS

[46] Consequently, the following orders are made:

1. Leave is granted to applicant to amend its particulars of claim in the terms set out in its notice of intention to amend dated 20 September 2019 which is attached to the founding affidavit as annexure “FA1”.

2. The 1st and 2nd Respondents are ordered to pay the costs of this application, jointly and severally, the one to pay the other to be absolved.

__________________

J P DAFFUE, J

On behalf of Plaintiff: Adv SJ Reinders

Instructed by: Honey Attorneys

BLOEMFONTEIN

On behalf of Defendants: Adv C Snyman

Instructed by: Neuhoff Attorneys

[i] Rule 28 (4), i.e 10 days after delivery of the objection.

[ii] See Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats [2004] 1 All SA 129 (SCA) at 133 h – i.

[iii] Van Loggerenberg et al, Erasmus: Superior Court Practice, 2nd ed, vol 2 at D1 – 333.

[iv] Trans-Drankensberg Bank Ltd v Combined Engineering (Pty) Ltd 1967 (3) SA 632 D at 643 A – C.

[v] See Evins v Shield Insurance Company Ltd 1980 (2) SA 814 (A) at 836 D: Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) at 15 H – 16 C.

[vi] Mukaddam v Premier Foods 2013 (5) SA 89 (CC) at paras 31 & 32.

[vii] 2016 (3) SA 37 (CC) at paras 39 & 40: “[39] Without doubt, rules governing the court process cannot be disregarded. They serve an undeniably important purpose. That, however, does not mean that courts should be detained by the rules to a point where they are hamstrung in the performance of the core function of dispensing justice. Put differently, rules should not be observed for their own sake. Where the interests of justice so dictate, courts may depart from a strict observance of the rules. That, even where one of the litigants is insistent that there be adherence to the rules. Not surprisingly, courts have often said '(i)t is trite that the rules exist for the courts, and not the courts for the rules'. [40] Under our constitutional dispensation the object of court rules is twofold. The first is to ensure a fair trial or hearing. The second is to 'secure the inexpensive and expeditious completion of litigation and . . . to further the administration of justice'. I have already touched on the inherent jurisdiction vested in the superior courts in South Africa. In terms of this power the High Court has always been able to regulate its own proceedings for a number of reasons, including catering for circumstances not adequately covered by the Uniform Rules, and generally ensuring the efficient administration of the courts' judicial functions.”

[vii] 2016 (3) SA 37 (CC) at paras 39 & 40: “[39] Without doubt, rules governing the court process cannot be disregarded. They serve an undeniably important purpose. That, however, does not mean that courts should be detained by the rules to a point where they are hamstrung in the performance of the core function of dispensing justice. Put differently, rules should not be observed for their own sake. Where the interests of justice so dictate, courts may depart from a strict observance of the rules. That, even where one of the litigants is insistent that there be adherence to the rules. Not surprisingly, courts have often said '(i)t is trite that the rules exist for the courts, and not the courts for the rules'.

[40] Under our constitutional dispensation the object of court rules is twofold. The first is to ensure a fair trial or hearing. The second is to 'secure the inexpensive and expeditious completion of litigation and . . . to further the administration of justice'. I have already touched on the inherent jurisdiction vested in the superior courts in South Africa. In terms of this power the High Court has always been able to regulate its own proceedings for a number of reasons, including catering for circumstances not adequately covered by the Uniform Rules, and generally ensuring the efficient administration of the courts' judicial functions.”

[viii] Ibid.

[ix] 2019 (4) SA 608 (GJ) where the learned judge deals with the issue, relying on well-established principles in par 36. “On the other hand, I am guided by the approach of Schreiner JA in Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 278F, where he emphasised that: 'No doubt parties and their legal advisers should not be encouraged to become slack in their observance of the Rules, which are an important element in the machinery for the administration of justice. But on the other hand technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.' [Own emphasis.] [37] Courts have always been inclined to adopt a pragmatic approach in dealing with formalistic and technical objections. In Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC) (2016 (9) BCLR 1133; [2016] ZACC 19) para 41 Mogoeng CJ commented that '(t)he Constitution and our law are all about real justice, not mere formalities', emphasising that form should never trump any approach that would advance the interests of justice.”

[ix] 2019 (4) SA 608 (GJ) where the learned judge deals with the issue, relying on well-established principles in par 36. “On the other hand, I am guided by the approach of Schreiner JA in Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 278F, where he emphasised that:

'No doubt parties and their legal advisers should not be encouraged to become slack in their observance of the Rules, which are an important element in the machinery for the administration of justice. But on the other hand technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.'

[Own emphasis.]

[37] Courts have always been inclined to adopt a pragmatic approach in dealing with formalistic and technical objections. In Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC) (2016 (9) BCLR 1133; [2016] ZACC 19) para 41 Mogoeng CJ commented that '(t)he Constitution and our law are all about real justice, not mere formalities', emphasising that form should never trump any approach that would advance the interests of justice.”

[x] 2000 (3) SA 87 (W) at p 15.

[xi] 2014 ( 2) SA 68 (CC) at par 23.

[xii] Ibid: “[32] I need to remind practitioners and litigants that the rules and court's directions serve a necessary purpose. Their primary aim is to ensure that the business of our courts is run effectively and efficiently. Invariably this will lead to the orderly management of our courts' rolls, which in turn will bring about the expeditious disposal of cases in the most cost-effective manner… [35] It is by now axiomatic that the granting or refusal of condonation is a matter of judicial discretion. It involves a value judgment by the court seized with a matter based on the facts of that particular case. In this case, the respondents have not made out a case entitling them to an indulgence. It follows that their application must fail.”

[xiii] 2008 (2) SA 472 (CC).

[xiv] 2017 (6) SA 360 (SCA).

[xv] 2017 (4) SA 223 (CC).

[xvi] Act 3 of 2000.

[xvii] Loc cit par 46.

[xviii] Ibid par 49.

[xix] 2017 JDR 0811 (VP).

[xx] Ibid par 27.

[xxi] 1991 (2) SA 549 (W).

[xxii] JDR 0416 (GSJ).

[xxiii] Ibid par 50.

[xxiv] 2020 (2) SA 419 (SCA) paras 8 – 16.

[xxv] S 6 of the General Law Amendment Act 50 of 1956 and Fourlamel (Pty) Ltd v Maddison 1977 (1) SA 333 (A) at 342 and further. See also Bradfield et al, Wille’s Principles of SA Law, 9th ed at p 1018 and further.

[xxvi] 1978 (4) SA 1 (A) at p 12 B – D: “The provisions of s 6 of Act 50 of 1956 do not invalidate a contract of suretyship of this sort provided, of course, such contract is embodied in a written document, and it is signed by or on behalf of the surety. What s 6 requires is that the "terms" of the contract of suretyship must be embodied in the written document. It was contended by counsel for plaintiff that this meant that the identity of the creditor, of the surety and of the principal debtor, and the nature and amount of the principal debt, must be capable of ascertainment by reference to the provisions of the written document, supplemented, if necessary, by extrinsic evidence of identification other than evidence by the parties (ie the creditor and the surety) as to their negotiations and consensus. I agree with this contention. In my view, there can be no objection to extrinsic evidence of identification being given, either by the parties themselves, or by anyone else, unless the leading of such evidence can be said to amount to an attempt to supplement the terms of the written contract.”

[xxvii] 2003 (1) SA 365 (SCA): “[12] … In the Sullivan case, too, it appeared ex facie the deed of suretyship that the debt secured arose in terms of the lease agreement sought to be incorporated. What was required therefore was no more than extrinsic evidence identifying the actual lease agreement as the one referred to. It follows that, in my view, Sullivan's case was wrongly decided. [13] As previously stated, the deed of suretyship in the present case similarly makes it clear that the debt secured is the loan in terms of the loan agreement sought to be incorporated. Extrinsic evidence identifying the loan agreement as the one referred to is all that would be required and is therefore admissible.”

[xxviii]1967 (4) SA 308 (C).

[xxix] Ibid at par 310 F – G.

[xxx] Per Tebbut AJ in Crawford-Brunt.