Rex v Diedricks (865/2020) [2021] ZAFSHC 151 (7 June 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case number: 865/2020

In the matter between:

CHARLTON MICHAEL REX Applicant

and

KENNETH LEONARDO DIEDRICKS Respondent

In re:

KENNETH LEONARDO DIEDRICKS Plaintiff

CHARLTON

MICHAEL REX Defendant

CORAM: DAFFUE, ADJP

HEARD ON: 20 MAY 2021

JUDGMENT BY: DAFFUE, ADJP

DELIVERED ON: 7 JUNE 2021

This judgment was handed down electronically by circulation to the parties’ representatives by email, and release to SAFLII. The date and time for hand-down is deemed to be 13:00 on 7 JUNE 2021.

I

INTRODUCTION

[1] This is an opposed application in terms whereof the applicant, cited as defendant in the main action, seeks leave to amend his counterclaim consisting of three separate claims based on defamation. Applicant also seeks condonation for the late filing of his application for leave to amend which application is also opposed.

II

THE PARTIES

[2] The applicant is Charlton Michael Rex, a major male person and admitted advocate residing in Bloemfontein. He was represented in the proceedings before me by Adv P Nel of Pretoria, instructed by Jaco Roos Attorneys, Pretoria. The local attorneys of record are Honey Attorneys.

[3] The respondent is Kenneth Leonardo Diedricks, a major male person and admitted attorney residing in Johannesburg. The respondent was represented in the proceedings before me by Adv T Mosikili of Sandton, instructed by Masondo Malope Attorneys, Johannesburg. The local attorneys are Webbers Attorneys.

III

THE RELIEF CLAIMED

[4] The applicant seeks leave to amend the separate claims contained in his counterclaim in accordance with his notice of intention to amend dated 19 January 2021. He also seeks an order in terms whereof the respondent is directed to pay the costs of the application. To avoid confusion, I shall refer to the parties as cited in this application.

[5] The applicant served and filed an application for condonation on receipt of the heads of argument filed on behalf of Mr Mosikili on 14 May 2021. The following relief is sought in this application:

“1. Condoning the applicants’ (sic) late filing of the notice in terms of Rule 28 which was served on the respondent on 19 January 2021.

2. Should the Court find that applicant’s counterclaim was struck for non-compliance with the Court order of 3 December 2020, that applicant’s counterclaim be reinstated.

3. The applicant is to pay the costs of the application in event of it being unopposed and the respondent to pay the costs in the event of him opposing this application;”

[6] The application for condonation was served and filed on Tuesday, 18 May 2021. Just before the hearing on 20 May 2021 the respondent served and filed his answering affidavit to the application for condonation.

IV

A BRIEF HISTORY OF THE LITIGATION THUS FAR

[7] The following is relevant to the issue:

7.1 The respondent issued his combined summons on 21 February 2020 in which action he claims damages in the amount of R1 million based on defamation.

7.2 The applicant filed his plea and counterclaim on 20 April 2020.

7.3 The respondent filed a replication to applicant’s plea as well as a notice in terms of rules 23 and 30 pertaining to the counterclaim.

7.4 On 11 June 2020 the respondent’s exception was filed which was eventually set down for hearing on 11 September 2020.

7.5 The exception was argued before one of my colleagues who reserved judgment which was eventually delivered on 3 December 2020, approximately three months after hearing the parties. The following order was made:

“1. The exception to the defendant’s claim is upheld on the three grounds.

2. Exception on jurisdiction is dismissed.

3. Defendant is granted an opportunity to amend his Particulars of Claim (sic) within ten (10) days of the granting of this order.

4. Failing to comply with order 3 above, the defendant’s counter claims are struck out.

5. The defendant is to pay the costs of this application.”

7.6 On 19 January 2021 the applicant’s notice of intention to amend in terms of rule 28 was served by email on respondent’s attorneys which document was filed with the court on 21 January 2021.

7.7 On 2 February 2021 respondent filed a detailed written objection without taking the point that the period of 10 days referred to in paragraph 3 of the aforesaid order had lapsed prior to the filing of the application to amend and that the counterclaim was automatically struck out as a result of paragraph 4 of the order.

7.8 On 1 March 2021 the application to amend was served and filed whereupon the respondent filed his notice of opposition as early as 3 March 2021. No answering affidavit was filed.

7.9 On 15 April 2021 the matter was set down on the opposed roll for hearing on 20 May 2021.

7.10 Both counsel filed heads of argument in terms of the practice directives of this division.

7.11 As mentioned, and following a submission contained in the respondent’s heads of argument, an application for condonation was filed on 18 May 2021 whereupon an affidavit opposing the application for condonation was filed the morning of the hearing.

7.12 On the morning of the hearing the applicant’s counsel presented me with supplementary heads of argument in respect of the condonation application.

V

THE UNIFORM RULES OF COURT AND APPLICABLE LEGAL PRINCIPLES

[8] It is trite that once an exception is upheld and the offending pleading struck out, the party affected is granted an opportunity to amend the pleading within a specific period of time as I shall show later herein. It is not necessary to embark on the procedure contained in rule 28 which deals with amendment of pleadings. However, the applicant did just that and it is therefore apposite to deal with amendments in general. The primary object of allowing an amendment is to ensure that the real disputes between the parties are correctly determined, that those disputes are properly ventilated so that justice may be done.[1]

[9] An important aspect to be considered in adjudicating an application for amendment is whether prejudice might be caused to the other party that cannot be cured by either a costs order or a postponement where appropriate. Therefore, amendments should be allowed unless the party seeking the amendment is mala fide or if an injustice will be caused to the other side.[2] In casu it is respondent’s case that the amendments should not be allowed because the counterclaim, to be amended as anticipated, will remain excipiable as was the case when the matter was considered and adjudicated by my colleague. Therefore, it needs to be considered whether the introduction of the amended counterclaim will present a triable issue.[3] Consequently, if the three separate claims in the amended counterclaim do not disclose causes of action, the amendment should not be allowed.[4]

[10] An amendment should not be refused to punish a party for some mistake or neglect. In such case it would be more opportune to make an appropriate costs order.[5]

[11] Having dealt with the authorities pertaining to amendments, it is also apposite to consider the argument that applicant’s counterclaim was struck out automatically once the period of 10 days set out in the aforesaid court order had lapsed. Respondent argued: “(t)he nett effect …. that there is no amendment of the counterclaim before this court to consider. The matter end here.” This submission is bolstered later in the heads of argument as follows: “… the respondent has not waived his rights embedded in Order 4, that is, to have a claim struck out.” I accept that a court order remains valid and enforceable until amended and/or set aside, either in terms of the rules of court or on appeal.[6] In Group Five Building Ltd v Government of The Republic of South Africa (Minister of Public Works and Land Affairs) the invariable and long-standing practice of our courts pertaining to successful exceptions has been confirmed: if the exception is upheld and the particular pleading set aside, leave is always granted to the unsuccessful party to file an amended pleading, if so advised, within a certain time period.[7] In Group Five[8] the court upheld an appeal in part and ordered the unsuccessful plaintiff to file an amended particulars of claim, if so advised, within one month. This period is a far cry from the 10 days allowed in casu.

[12] The applicant had a right to appeal the judgment and in such a case he would have had fifteen days from 3 December 2020 to file the application for leave to appeal. Therefore, by the time that the period of 10 days provided for in the order lapsed, the applicant still had time to consider an appeal and to file an application for leave to appeal if so advised. In Natal Fresh Produce Growers' Association and Others v Agroserve (Pty) Ltd and Others[9] Hugo J held that in so far as leave was granted to the plaintiff to amend the summons within a certain period of time, but failed to do so, it was not necessary for the defendant to serve a notice of bar or to apply for absolution from the instance since the summons having been dismissed, there was no instance from which to be absolved. This judgment was criticised in Group Five supra[10] where Corbett CJ, the scribe of a unanimous court, said the following:

“This, in my opinion, does not constitute the law and practice of our Courts.”

[13] The Natal Fresh Produce judgment was also criticised and not followed by Van Oosten J in Standard Bank of SA Ltd v Van Dyk.[11] The judgment of Harms J (as he then was) in Princeps (Edms) Bpk en 'n Ander v Van Heerden NO en Andere[12] is also instructive on the issue of amendments of pleadings that were held to be excipiable. In Costantaras v BCE Foodservice Equipment (Pty) Ltd[13] the Supreme Court of Appeal considered the Group Five and Princeps judgments and held them to be a correct reflection of our law. In that case the SCA ordered the amended plea to be filed within one month of the making of the order “failing which the plaintiff may set the matter down for judgment.”[14] This order is in direct contrast with paragraph 4 of the order as interpreted by respondent. The Group Five judgment was referred to with approval by the SCA in Ocean Echo v Old Mutual Life.[15] In Ocean Echo the SCA criticised the judgment of the court a quo that not only struck out the plea upon a successful exception, but also proceeded to enter judgment for the other party in stead of granting leave to amend the plea. It held as follows: “The upholding of an exception disposes of the pleading against which the exception was taken, not the action or defence… The rationale for this seems to be that, although the defence contained in the pleading may be bad, the pleading as such continues to exist.”

[14] Paragraph 4 of the order anticipated that in the event of non-compliance with paragraph 3, the whole counterclaim is to be struck out automatically. The respondent submitted that this meant that there is nothing to be amended once there was non-compliance with paragraph 3 and that it is not possible to ask for an extension of time. I requested Mr Mosikili to obtain authority for his submission and the dreadful consequences submitted by him. I allowed him an opportunity to forward relevant authorities electronically to my secretary on/or before Sunday evening, 23 May 2021. I am grateful for his valued co-operation. He referred to Constantaras and an unreported judgment by Reyneke AJ.[16] Neither judgment supports the respondent’s submissions on the particular issue. As mentioned, the appropriate order when an exception is upheld is to strike out the offending pleading or a portion thereof and to grant leave to amend. Respondent incorrectly submitted that non-compliance with the time limit set out in paragraph 3 is the end of the road as far as the counterclaim is concerned.

[15] In the event of non-compliance with the Uniform Rules of Court, rule 30A stipulates that the innocent party may notify the defaulting party that he or she intends, after the lapse of 10 days from the date of delivery of such notification, to apply for an order that the rule be complied with or that the claim or defence be struck out. Once the party has failed to comply within the period of 10 days contemplated above, an application may on notice be made to the court who may make such order thereon as it deems fit.

[16] Rule 35(7) stipulates that if a party fails to provide discovery in terms of rule 35, or having been served with a notice under subrule (6), omits to comply, the party desiring discovery or inspection may apply to the court, which may order compliance with this rule and failing such compliance, dismiss the claim or strike out the defence.

[17] It was held in Himelsein v Super Rich CC and Another[17] that a court order which had lapsed in the absence of service can be reinstated in terms of rule 27. The applicant’s application for condonation must be considered in accordance with the legal principles applicable to rule 27 which reads as follows:

“27 Extension of Time and Removal of Bar and Condonation

(1) In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these Rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any step in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet.

(2) Any such extension may be ordered although the application therefor is not made until after expiry of the time prescribed or fixed, and the court ordering any such extension may make such order as to it seems meet as to the recalling, varying or cancelling of the results of the expiry of any time so prescribed or fixed, whether such results flow from the terms of any order or from these rules.

(3) The court may, on good cause shown, condone any non-compliance with these rules.” (emphasis added)

VI

EVALUATION OF THE SUBMISSIONS BY COUNSEL

[18] I accept that I do not sit as a court of appeal on the aforesaid judgment and whether or not I agree with the order granted, the parties are bound thereto in so far as the order has not been varied or rescinded in terms of rule 42, or set aside on appeal.

[19] The late filing of the notice of intention to amend was never in contention until three court days before the hearing of the opposed application. As mentioned, the respondent filed extensive objections to the notice of intention to amend, but did not make a single averment pertaining to the late notice or the fact that the counterclaim had already been struck out automatically and could not be amended as a result.

[20] I have read the founding affidavit of applicant’s attorney with the required attention, but must say that I find it quite difficult to grasp that the attorney could be under any misunderstanding as to the aspect of dies non. The concept of dies non is found in rule 19 dealing with notice of intention to defend. In terms thereof the period from 16 December to 15 January, both days inclusive, shall not be counted to calculate the time allowed within which to deliver a notice of intention to defend. This rule has nothing to do with the time periods within which court orders must be complied with.

[21] Although I have my doubts in this regard, I am not prepared to find that applicant’s attorney was mala fide. It is possible that she merely made a bona fide mistake and/or acted negligently. Another aspect that must be considered, although not raised by the applicant, is the fact that it took the court nearly three months to deliver judgment and then the applicant was expected to file an amended counterclaim within 10 days from the date of the order. This is in conflict with authorities allowing one month or 20 days. Both in Group Five and Constantaras a period of one month was allowed to amend the particular pleadings. In my experience a period of 20 days or one month is usually allowed. The High Court went in recess on Friday 11 December 2020 and it is common cause that numerous businesses across the country usually close down for the festive season. In the Free State many firms of attorneys close their doors during this period as well.

[22] Having considered the reasons why condonation is sought and the difficult period in which the applicant was expected to respond to the court order, I am satisfied that a proper case has been made out for condonation. It must be emphasised that the mere fact that the counterclaim was struck out does not mean that it evaporated in thin air. It still remained in the court file as reiterated in Princeps referred to with approval in Constantaras and Ocean Echo.[18]

[23] The defendant was entitled to file an amended counterclaim and an application in terms of rule 28 was not required. However, I also need to deal briefly with the merits of the application for amendment. I am satisfied that the applicant has pleaded all relevant facta probanda in order to rely on defamation pertaining to all three claims contained in the amended counterclaim. It is not necessary to set out the facta probantia in the counterclaim and/or to present evidence. This will be expected of the applicant during the hearing of the action. The counterclaim to be amended sets out the facta probanda with sufficient particularity and the respondent cannot be heard to complain that it is not possible to plead thereto.

[24] Defamation is defined as the wrongful, intentional publication of words or behaviour concerning another person which has the effect of injuring his status, good name or reputation.[19] Nothing more needs to be said in this regard than to refer to Harms’ well-known Amler’s on Pleadings,[20] Le Roux and Others v Dey,[21] O’ Keeffe v Argus Printing and Publishing Co Ltd & Another,[22] Khumalo and others v Holomisa,[23] Featherby v Zulu,[24] as well as the right to human dignity embedded in s 10 of the Constitution – a right regarded by many as “perhaps the pre-eminent value” “that informs the interpretation of many, possibly all, other rights.”[25] All the elements required in a claim for defamation have been appropriately pleaded in the amended counterclaim. Respondent knows exactly what is alleged against him. The object of pleadings has been achieved.[26] There is no issue of vagueness. In my view the alleged remarks pertaining to applicant such as “fucking idiot,” “asshole,” “stupid,” that “he would threaten to shoot judges” and several other allegations as well the innuendo that he participated in fraud are clear indications of defamation. Notwithstanding the conclusion arrived at by my colleague to which I am not bound in dealing with the application for amendment, I am satisfied that the amendments will not cause any of the claims contained in the counterclaim to be excipiable. Therefore, the application for amendment should be granted.

VII

COSTS

[25] Applicant seeks an indulgence from the court, both in respect of the amendment as well as the condonation application. The general rule is that costs do not follow the event in such cases. Such party should pay the costs of the application as well as that of the opposition, unless the opposition appears to be frivolous or vexatious. Having considered the matter, I am satisfied that the applications were unreasonably opposed and should be labelled frivolous. I conclude, in exercising my discretion, that this is a suitable case where each party shall be ordered to pay his own costs pertaining to the matters at hand.

VIII

ORDER

[26] 1. The late filing of applicant’s application for amendment is condoned.

2. The applicant is granted leave to amend his counterclaim in accordance with his notice of intention to amend dated 19 January 2021.

3. Each party shall be responsible for his own costs in respect of both applications.

J P DAFFUE, ADJP

On behalf of Applicant : Adv P Nel

Instructed by : Jaco Roos Attorneys

c/o Honey Attorneys

Bloemfontein

On behalf of the Respondent : Adv T Mosikili

Instructed by Masondo Malope Attorneys

c/o Webbers Attorneys

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

[2] See Rosner v Lydia Swanepoel Trust 1998 (2) SA 123 (W) at 127 D - G

[3] See Trans - Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D & CLD) at 641 A; Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another [1990] ZASCA 47; 1990 (3) SA 547 (A) at 565 H - J

[4] See Alpha (Pty) Ltd v Carltonville Ready Mix Concrete CC and Others 2003 (6) SA 289 (W) at 291 A – B and 293 I - J

[5] Trans - Drakensberg Bank Ltd loc cit at 640 H

[6] See inter alia rule 42 dealing with variation and rescission of court orders.

[7] [1993] ZASCA 4; 1993 (2) SA 593 (A) at 602 D

[8] Ibid 604 F

[9] 1991 (3) SA 795 (N) at 800 F – 801 F

[10] Group Five at 603 C - E

[11] 2016 (5) SA 510 (GP) at para 4

[12] 1991 (3) SA 842 (T) 845 D - 846 D

[13] 2007 (6) SA 338 (SCA) at paras 30 - 32

[14] Ibid para 33

[15] 2018 (3) SA 405 (SCA) at para 8

[16] Inzinger v Hofmeyr, case no 7575/2010 delivered in the South Gauteng High Court on 4 November 2010

[17] 1998 (1) SA 929 (W) at 932 E – 933 D

[18] Referred to supra

[19] Neethling et al, Law of Delict 5th ed at 307

[20] 9th ed p 151 and further and rule 18 dealing with pleadings

[21] 2011 (3) SA 274 (CC) at paras 84 – 91 and 120 - 149

[22] 1954 (3) SA 244 (CPD) at 247

[23] [2002] ZACC 12; 2002 (5) SA 401 (CC) at para 27

[24] Case no D2963/2016, an unreported judgment of the Kwazulu-Natal local division in Durban delivered on 29 January 2021

[25] See: Currie & De Waal, The Bill of Rights Handbook 5th ed p 272 and Dawood and Another v Minister of Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC) para 35

[26] Trope and Others v South African Reserve Bank 1992 (3) SA 208 (T) at 210 G - I