Cornelius Amos Peterson t/a Peterson Quantity Surveying and Project Management v Minister of Public Works (Appeal) (1423/2010) [2024] ZANCHC 120 (15 November 2024)

IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

Case No: 1423/2010

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

CORNELIUS AMOS PETERSON t/a PETERSON

QUANTITY SURVEYING AND PROJECT MANAGEMENT Appellant

and

MINISTER OF PUBLIC WORKS

Respondent

Coram: Mamosebo ADJP et Lever J et Nxumalo J

Heard: 16/09/2024

Delivered: 15/112024

Summary: An appeal to the Full Court of the Northern Cape Division. Leave granted by court a quo against its order dismissing with costs an application by the appellant for leave to amend its Particulars of Claim. Appellant maintaining amendment would correct a misnomer or misdescription. Defendant contends amendment would have effect of substitution, be prejudicial to defendant as claim has prescribed.

ORDER

(a) The order of the court a quo regarding the dismissal of the application for Leave to Amend paragraph 2 of the Plaintiff’s Particulars of Claim is set aside and substituted with an order granting the appellant leave to amend paragraph 2 of its Particulars of Claim in the manner reflected in the Notice of Intention to Amend

dated 18 August 2021 to reflect the Minister of Public Works as the defendant.

(b) The appellant’s costs in (i) the Application for Leave to Amend; (ii) the Application for Leave to Appeal; and (iii) the appeal itself to be paid by the respondent/defendant taxed on Scale B.

JUDGMENT: FULL COURT APPEAL

Mamosebo ADJP

[1] This appeal has its origin in an application for the amendment of paragraph 2 of the plaintiff’s Particulars of Claim heard on 28 January 2022, to reflect ‘The Minister of Public Works’

as the defendant. The application for the amendment was opposed by the defendant and came before Ramaepadi AJ on 28 January 2022, who dismissed it with costs. The appeal is with leave of the trial court. For convenience, I will refer to the parties as plaintiff and defendant.

[2] Ramaepadi AJ pointed out at paragraph 3 of his reasons that the pleadings in this case are a far cry from the standard required by Rule 18(4) of the Uniform Rules of Court, the Particulars of Claim having been amended back and forth, on no less than three occasions by two sets of firms of attorneys. Mr Gess SC, for the plaintiff, described what transpired as ‘a comedy of errors.’

Condonation

[3] Heads of argument filed on behalf of the respondent were filed out of time without any condonation application. This conduct is deprecated as it causes unnecessary delays in the finalisation of matters and contributes to backlogs. It would help a great deal if practitioners would familiarise themselves with and implement the practice

directives of this Division for its smooth running.[1] Condonation, nevertheless, is granted.

Background

[4] The plaintiff is Cornelius Amos Peterson, t/a Peterson Quantity Surveying and Project Management. On 17 August 2010 he instituted action against the Minister of Public Works. In paragraph 2 of his Particulars of Claim, he identified the defendant as follows:

‘Defendant is the Minister of Public Works, who has his principal office at AVN Building, corner of Andries and Skinner Road, Pretoria, care of The State Attorney, Woolworths Building, corner of Lennox and Chapel Streets, Kimberley, Northern Cape Province.’

[5] The defendant, the Minister of Public Works, excepted to the plaintiff’s Particulars of Claim in terms of Rule 23, which was set down for hearing on 10 May 2012. A day before the exception could be heard the hearing was set down for 1 June 2012. On that day, Olivier J ordered by consent that the hearing of the exception be postponed sine die and reserved the costs.

[6] On the face of the combined summons, the party that is cited as the defendant is the Minister of Public Works. Preceding the issuing of the summons, the plaintiff’s erstwhile attorneys had addressed correspondence dated 2 February 2010, to the National Department of Public Works in Pretoria, to which a response dated 24 April 2010 was received. It became apparent that the contractual relationship pertaining to the mentorship services was between the plaintiff and the National Department of Public Works.

[7] On 14 January 2015, the plaintiff’s erstwhile firm of attorneys, Madeleen Teseling Attorneys, filed a Notice of Intention to Amend the Combined Summons and Particulars of Claim, by deleting the body of the Particulars of Claim in its entirety and amending paragraph 2 thereof to read:

‘The defendant is the MEC: Department of Public Works, who has principal office at AVN Building, Cnr. of Andries and Skinner Streets, Pretoria and c/o the State Attorney, Woolworths Building, Cnr of Lennox and Chapel Streets, Kimberley, Northern Cape Province.’

[8] On 9 November 2015 an identical Notice of Intention to Amend was filed by plaintiff’s new firm of attorneys, Engelsman Magabane Inc, and again on 12 April 2016. On 18 August 2021, the plaintiff delivered yet another Notice of Intention to Amend, seeking to amend the same paragraph 2 of the Particulars of Claim to read:

‘The defendant is the Minister of Public Works, who has his principal office at AVN Building, Cnr. Andries and Skinner Streets, Pretoria

and care of the State Attorney, 1st Floor, Woolworths Building, Cnr. of Lennox and Chapel Street, Northern Cape Province.’

[9] On 1 September 2021 the defendant objected to the plaintiff’s proposed amendment dated 18 August 2021. What is immediately discernible in this Notice of Objection is that the defendant, the objector, is described as ‘the Minister of Public Works’. The objection was based on the following grounds: That the plaintiff

had six years within which to issue summons against the defendant from the date upon which the cause of action arose; that the effect of granting such an amendment would amount to resuscitating an already prescribed claim; and that the defendant will further be prejudiced by the granting of such an order.

[10] The issues that stand for determination in this appeal are aptly summarised as follows:

(a) Whether the court a quo was correct in its finding that the plaintiff’s amendment of his Particulars of Claim in 2016 (the 2016 amendment) had the effect of substituting the ‘Minister of Public Works’ as the defendant with the ‘MEC: Department of Public Works’ and the matter proceeding against the MEC.

(b) Whether the application brought by the plaintiff dated 7 September 2021, seeking leave for the further amendment of paragraph 2 of his Particulars of Claim as set out in the Notice of Intention to Amend dated 18 August 2021, amounted to a correction of the misdescription or a mischaracterisation of the identity of the defendant or served as an attempt to substitute the Minister with the MEC.

(c) Whether the court a quo erred in its findings that there had been a substitution of the Minister with the MEC; and

(d) whether the application for leave to amend ought to have been granted.

Was the Minister of Public Works substituted by the MEC?

[11] The court a quo answered this question in the affirmative. Recognising that there was no Department of Public Works at provincial level, the court a quo reasoned that the reference to “MEC: Department of Public Works” was a mischaracterisation and therefore, by inferential reasoning, the description ought to have been ‘MEC: Department of Roads and Public Works, Northern Cape’. According to the court a quo the words ‘Roads and’ were omitted when an amendment was sought. The court a quo expressed a view that the substitution was tantamount to a withdrawal of the action against the Minister. It is unclear how the court a quo arrived at this conclusion, because:

(a) The Minister of Public Works was and has always appeared in the Summons and the Particulars of Claim;

(b) The Summons was served only on the Minister and the State Attorney representing the Minister;

(c) Despite the earlier intended amendments to replace the Minister of Public Works with the “MEC: Department of Public Works”, the amendments were never effected;

(d) The MEC in the Northern Cape was neither cited nor served with the papers, assuming that he/she was introduced as a party to the action;

(e) The parties, namely, the plaintiff and the Minister of Public Works, have at all material times conducted themselves as though the Minister was the defendant in the action; and

(f) A correct procedure was not followed in the attempt to substitute the Minister with the MEC and what was done is, in my view, void.

[12] From the commencement of the action proceedings, all the correspondence entered into was exchanged between the plaintiff and mainly the legal representative of the National Minister. The State Attorney was acting on behalf of the Minister and not the MEC. The address on the Particulars of Claim refers to the National Minister’s address in Pretoria. The MEC for the Northern Cape has his principal office in Kimberley, not Pretoria. It is uncertain whether, even at

this point, the MEC has any knowledge that he/she has purportedly been substituted as a party. It is the Minister who filed the plea and not the MEC. No Notice of Withdrawal was served on the Minister or his attorney and the issue of costs pertaining to the exception that was postponed sine die is therefore still pending.

[13] On 23 February 2011, the State Attorney filed a Notice of Exception in terms of Rule 23. The notice was on behalf of the Minister and not the MEC when excepting to the plaintiff’s Particulars of Claim. Vuyane Edwin Mabe, legal officer of the Department of Public Works, also deposed to the discovery affidavit on behalf of the Minister in

which he stated that the defendant, referring to the Minister, has in his possession or under his control documents relevant to the issues in this action. Undoubtedly, the State Attorney is litigating on behalf of the Minister. Paragraph 3.4 of the defendant’s heads of argument reads:

‘On the date of the hearing, the matter could not proceed due to paragraph 2 of the plea to the second amendment to the particulars of claim denial of the MEC as the defendant. State Attorney appeared for the Minister of Public Works and Infrastructure.’

[14] It was contended on behalf of the defendant that the plaintiff ought to be non-suited because the action against the Minister was withdrawn. This contention cannot be correct. As stated earlier, there was no formal notice of withdrawal of the action and no tender for wasted costs. The trial court’s remarks at para 65 of its reasons that the fact that a formal notice of withdrawal of the action was not filed is of no consequence, can also not be correct.

[15] The court a quo correctly dealt with the objection by the defendant that the plaintiff has failed to comply with Rule 6(11) of the Uniform Rules of Court[2] in that the application was not filed by way of notice of motion procedure supported by an affidavit explaining the reasons for

seeking this amendment. As clarified in Yorkshire[3] ‘Notice’ in this subrule does not mean notice of motion. These proceedings were already pending before court and the application for an amendment is incidental to such proceedings. Whereas the court a quo found that an affidavit by the plaintiff was necessary to explain the circumstances leading to the change in the identity of the defendant, I am of the view that this is not so serious as to non-suit the plaintiff in the amendment application since the Minister was already an active participant throughout the proceedings.

[16] Counsel for the defendant alleged before the trial court that the Minister of Public Works was subsequently substituted by the MEC in the 2016 amendment, a submission that seemed to have found

favour with the court a quo although no summons was ever served on the MEC. The Minister, in fact, continued to engage with the

plaintiff as if the application for an amendment never ensued. The court a quo found:

‘A substitution of this nature – replacing the previous defendant (Minister of Public Works) with the MEC: Department of [Roads and] Public Works, is in my view, tantamount to a withdrawal of the action against the previous defendant (Minister of Public Works). This is for the reasons inter alia that, with effect from the date of the substitution, the litigation then proceeds against the new defendant; no further reference is made to the previous defendant; if the matter is successfully prosecuted, any judgment which the court may make in the matter will be against the new defendant.’

[17] This brings us to the question of prejudice alleged by the Minister should the application for the amendment succeed. It was contended on behalf of the defendant that should the appeal court accept the application by removing the MEC as a party and substituting him with the Minister, it would be resuscitating an already prescribed claim to the prejudice of the Minister. It is contended in the defendant’s heads of argument that the court a quo’s reasoning at paragraphs 24.2 – 24.4 of the reasons for its order are sound. They are not.

[18] This is why: The National Minister of Public Works was served with the summons and had entered an appearance to defend. The minister actively continued to defend the action in his capacity as the defendant and not only excepted to the plaintiff’s Particulars of Claim but also raised a plea that the claim has prescribed. For all intents and purposes, the Minister was the correct defendant and a party to the proceedings from the outset. From the papers the Minister understood that he was the defendant, and the State Attorney has acted for the Minister since 1 December 2020. There was neither

an application brought to join the MEC nor a Notice of Withdrawal served on the Minister.

[19] According to Erasmus[4] , if an amendment is sought to change the name of a defendant, prescription will have been interrupted as contemplated in s 15(1) of the Prescription Act[5], only if the facts show that the summons had been served on the party whose name is sought to be introduced in place of the existing name of the defendant. In such an event the wrong description of the defendant would be nothing but a mere misdescription of the correct debtor and the amendment would serve no more than to correct a misdescription of the already existing defendant. See also Airconditioning Design & Development (Pty) Ltd v Minister of Public Works, Gauteng Province.[6] Since no summons was served on the MEC or re-served on the Minister, the issue of prescription does not arise.

[20] Counsel for the defendant argued that in the second amended Particulars of Claim[7] dated 3 August 2017 the plaintiff cited the defendant in the heading as Minister of Roads and Public Works, Northern Cape Province. In the defendant’s plea to this second amendment, the Minister left the heading unchanged as ‘Minister of Public Works’ and pleaded to that amendment. Mr Jonase, for the defendant, argued that the citation of the defendant was wrong.

To take issue with the omission of the words “Roads and” in the citation of the Minister is clutching at straws. It is a non sequitur. When counsel was confronted with the question that it is the Minister and not the MEC at Andries and Skinner Street, Pretoria, he could not take the argument further. It is just as well.

[21] The main authority in this appeal is the MEC for Safety and Security, Eastern Cape v Mtokwana[8]. In this case, the respondent had instituted action against the MEC for Safety and Security, Eastern Cape, alleging that he was vicariously

liable for acts committed by members of the South African Police Service against him. He issued summons against the MEC who, in turn, denied being vicariously liable for the alleged wrongful conduct of the SAPS members maintaining that the correct person to cite in the proceedings was the National Minister of Safety and Security. In essence, the contention was that there has been a misjoinder of the MEC and the non-joinder of the Minister. Pursuant to these submissions, Mtokwana’s attorney attempted to remedy the situation by bringing an application to amend the summons citing the National Minister of Safety and Security without making any reference to the MEC. The intractable problem faced was that the claim had prescribed. The amended summons was, however, only served on the attorney acting for the MEC. The following year, a second amendment was made, this time, served only on the MEC’s attorney. It was unclear if the Minister was aware that he was a party to the proceedings. There was no formal notice of withdrawal against the MEC.

[22] The SCA’s consideration was whether the plaintiff had effectively substituted the National Minister of Safety and Security as the defendant in the action. The court concluded that the purported substitution was a nullity; the Minister had never become a party; that the MEC had remained a party to the proceedings. The Court further held at para 18:

‘[18] The respondent ostensibly accepted that he had wrongly sued the MEC and intended an action against the Minister. Service on the Minister of any process to that effect was obligatory. That did not occur. If what was intended was a joinder of the Minister – although all the indications are to the contrary – there ought to have been a proper and substantiated application in terms of the rules of court served on the Minister. Had there been a proper application for joinder the Minister might very well have provided numerous grounds for resisting such an application. Not least of all would have been

the defence of prescription which, having regard to the chronology set out above, is startlingly obvious.’

[23] The SCA in Mtokwana[9] went on to state that the plaintiff ought to have withdrawn the action, issued a new summons and followed the correct procedure in terms of the rules. It cannot be gainsaid that the same holds true in the facts before us. The National Minister of Public Works has, in my view, and throughout the process, remained the defendant and the attempt at substituting the Minister with the MEC in the manner in which it was done in this action was wholly inappropriate and therefore a nullity.

[24] Van Heerden J’s approach in Embling and Another v Two Oceans Aquarium CC[10] bear repeating:

‘The primary object of allowing an amendment is to obtain a proper ventilation of the dispute between the parties, to determine the real issues between them, so that justice may be done (see Cross v Ferreira 1950 (3) SA 443 (C) at 447 and the other cases cited in Erasmus et al (loc cit note 5)). The power of the Court to allow even material amendments is therefore, it would seem, limited only by considerations of prejudice or injustice to the other side.’

It would therefore be sensible to reverse the order of the court a quo for a proper ventilation of the issues. Doing so would not lead to any prejudice as the Minister has discovered and pleaded. There will therefore not be any injustice to either party with such outcome.

[25] In Blaauwberg Meat Wholesalers v Anglo Dutch Meats (Exports)[11] Heher JA meted out caution regarding the fundamental differences when dealing with amendments regulated by a wide and generous discretion

which leans towards a proper ventilation of issues and are granted according to developed rules and the position where prescription was interrupted in terms of s 15(1) of the Prescription Act and prescription does not apply or has not run. I am persuaded in this

appeal before us that prescription does not apply. It follows that the application, therefore, stands to succeed.

[26] I now remain with the question of costs. It was submitted on behalf of the plaintiff that the defendant ought not to have objected to the amendment and the appellant is entitled to costs in (a) the application for leave to amend; (b) the application for leave to appeal; and (c) the appeal taxed on Scale C due to the complexity of the matter. In countering the request for costs on Scale C, Mr Jonase argued that the matter was not complex and warrants either Scale A or

B.

[27] Costs remain in the discretion of the court which is to be exercised judiciously. The continued comedy of errors could have been avoided and reduced the number of amendments sought had the different firms of attorneys representing the plaintiff been more purpose driven and paid more attention to detail. Conversely, the Minister was being unnecessarily technical in his defences. The fact that he was served with all the documents and actively participated in the proceedings, eliminates any form of prejudice or injustice. The contention pertaining to prescription should not even have featured. Although the applicant stands to succeed substantially, I am not persuaded that he is entitled to costs taxed on Scale C because he contributed to the protracted delay and the incurring of unnecessary costs.

[28] In the result, the following order is made:

(a) The order of the court a quo regarding the dismissal of the application for Leave to Amend paragraph 2 of the plaintiff’s Particulars of Claim is hereby set aside and substituted with an order granting the appellant leave to amend paragraph 2 of its Particulars of Claim in the manner as reflected in the Notice of Intention to Amend dated 18 August 2021 to reflect the Minister of Public Works as the defendant.

(b) The appellant’s costs in (i) the Application for Leave to Amend; (ii) the Application for Leave to Appeal; and (iii) the appeal itself to be paid by the respondent/defendant taxed on Scale B.

MC MAMOSEBO

JUDGE OF THE HIGH COURT

NORTHERN CAPE DIVISION

I agree

L LEVER

APS NXUMALO

For the appellant: Adv. DW Gess SC

Instructed by:

Engelsman Magabane Inc

For respondent: Adv. SS Jonase

Instructed by:

Office of the State Attorney, Kimberley

[1](3) The appellant’s heads and list of authorities together with two copies thereof shall be delivered not less than 15 days before the date on which the appeal is set down for hearing and the respondent’s not less than 10 days before such date. (5) The heads of argument of each party must be accompanied by a Practice Note indicating- (a) the name and number of the matter; (b) the issues on appeal succinctly stated; (c) a summary of the argument, not exceeding 100 words; (d) a list reflecting those parts of the record, if any, the party regards as irrelevant to the appeal or review and to which they do not intend to refer.

[1](3) The appellant’s heads and list of authorities together with two copies thereof shall be delivered not less than 15 days before the date on which the appeal is set down for hearing and the respondent’s not less than 10 days before such date.

(5) The heads of argument of each party must be accompanied by a Practice Note indicating-

(a) the name and number of the matter;

(b) the issues on appeal succinctly stated;

(c) a summary of the argument, not exceeding 100 words;

(d) a list reflecting those parts of the record, if any, the party regards as irrelevant to the appeal or review and to which they do not intend to refer.

[2]Rule 6 (11) Notwithstanding the aforegoing subrules, interlocutory and other applications incidental to pending proceedings may be brought on notice supported by such affidavits as the case may require and set down at a time assigned by the registrar or as directed by a judge.

[3] Yorkshire Insurance Co Ltd v Reuben 1967 (2) SA 263 (E) at 265E – H

[4] Erasmus, Superior Courts Practice, Vol 2, D1- 341

[5] Prescription Act 68 of 1969

[6] Airconditioning Design & Development (Pty) Ltd v Minister of Public Works, Gauteng Province [2005] ZAGPHC 12; 2005 (4) SA 103 (T) at 107C –G

[7] Index to Pleadings page 80

[8] MEC for Safety and Security, Eastern Cape v Mtokwana 2010 (4) SA 628 (SCA)

[9] At para 14

[10] Embling and Another v Two Oceans Aquarium CC 2000 (3) SA 691 (C) at 695A – D

[11] Blaauwberg Meat Wholesalers v Anglo Dutch Meats (Exports) 2004 (3) SA 160 (SCA) paras 12 and 13