Standard Bank of South Africa Limited v Associated Credit Management (Pty) Limited and Others (42937/2009) [2017] ZAGPJHC 407 (30 November 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case Number: 42937/2009

Not reportable

Not of interest to other judges

Revised.

30/11/2017

In the matter between:

STANDARD BANK OF SOUTH AFRICA LIMITED Plaintiff

and

ASSOCIATED CREDIT MANAGEMENT (PTY) LIMITED First Defendant

ISAAC WARREN GOLDBLATT Second Defendant

K MICHAEL YOCHUM Third Defendant

JUDGMENT

FISHER J:

INTRODUCTION

[1] The Plaintiff seeks leave to amend its particulars of claim, in terms of Rule 28(4), consequent upon the Defendants having objected to the Plaintiff’s notice of amendment dated 14 March 2017 and served on 14 March 2017.

[2] The defendant argues that the amendment seeks to introduce a claim that has evidently prescribed. It contends further that it was necessary in the circumstances for the plaintiff to set out in the application for leave to amend why it contends that the claim had not prescribed. The plaintiff on the other hand contends that it is not necessary for it to set out its possible rejoinder to a possible plea of prescription at this stage and that it suffices for the purposes of the argument that the alleged prescription is not common cause.

RELEVANT LAW

[3] Stroud v Steel Engineering Co Ltd 1996 (4) SA 1139 (W) the following was stated by Flemming DJP[1]:

“There remains the contention that because the claim is prescribed, it should not be allowed. I accept that the Court normally would not permit an allegation which has no possibility of advancing the situation of a litigant and can at best serve as basis for the need to hear evidence which leads nowhere. Accordingly it would make no sense to permit a claim which is known to have

prescribed. But if the supervening of prescription is not common cause, the application for amendment is normally not the proper place to attempt to have that issue decided. Technically speaking, in fact, prescription is not an issue until it has been pleaded. I say 'normally' because there may be special cases, for example where only legal interpretation makes the difference to facts which are common cause. However, except in such special situations, once prescription is not common cause, the plaintiff should not be deprived of his chance to put his claim before the Court because of apparent probabilities at the time when amendment is considered. Considerations of effectiveness and fairness confirm that propriety. The present defendant ought to raise its proposed defence (prescription) in the same way that it would raise any other defence which becomes appropriate after an amendment is granted.”[2]

[4] In Cordier v Cordier 1984 (4) SA 524 (C) the following was stated[3]:

“It seems clear, therefore, that at least two Divisions of the Supreme Court hold the view (correctly, with respect) that a special plea is not the only procedural device that can be used to raise the defence of prescription. But that is not the point. The question here is whether, in a trial action where we are still occupied with the pleadings, the defendant should be allowed to kill the case by successfully advancing the defence of prescription. I think not. While the first passage quoted above from the judgment of VILJOEN J may therefore be open to doubt in the light of the two subsequent judgments, I think the second part of the second passage quoted (at 202E - H) supplies the answer: it is only possible, not definite, that prescription is the full answer to plaintiff's case. It may be, on the other hand, that plaintiff is able to allege and prove an acknowledgment of liability by the defendant (cfs 14 (1) of the 1969 Act) or a waiver of the defence, or some other counterblast to defendant's assertion that plaintiff's new claim is prescribed. The grant of the amendment will leave it open to plaintiff to do so, whereas its refusal will leave plaintiff no option but to appeal.”[4]

[5] In Moolman v Estate Moolman and another 1927 CPD 27 at 29, a “practical rule’’ developed in a number of English cases was applied being that “amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs”. A fuller and more recent statement of this rule is to be found in the judgment of Rose Innes J in Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening 1994 (2) SA 363 (C) at 369F:

“The general rule is that an amendment of a notice of motion, as in the case of a summons or pleading in an action, will always be allowed unless the application to amend is mala fide or unless the amendment would cause an injustice or prejudice to the other side which cannot be compensated by an order for costs or, in other words, unless the parties cannot be put back for the purposes of justice in the same position as they were when the notice of motion which it is sought to amend was filed…”

[6] Applications for amendments should not deteriorate into mini-trials since amendment proceedings are not intended or designed to determine factual issues such as whether the claim has become prescribed. Furthermore it is not required in terms of rule 28(1) that a party should explain or motivate amendments that it seeks through a notice of intention to amend.( see also : Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd [2001] 2 All SA 506 (W) 2001 (4) SA 211 (W) at para [6]).

[7] In my view, It was neither necessary nor advisable for the plaintiff to motivate its amendment for the purposes of creating a forum at this stage of the proceedings to determine the question of prescription.

[8] The Defendants should not have opposed this application and thus they should pay the costs occasioned by their opposition.

ORDER

I thus make the following order:

(a) The Plaintiff is given leave to amend its particuars of claim in terms of its notice of intention to amend dated 14 March 2017;

(b) The Defendants are to pay the costs of this application jointly and severally.

________________________________

FISHER J

HIGH COURT JUDGE

GAUTENG LOCAL DIVISION

DATE OF HEARING: 09/11/2017 DATE OF JUDGMENT AND ORDER: 30/11/2017 LEGAL REPRESENTATIVES: FOR THE PLAINTIFF: Adv M D Silver Instructed by David Oshry & Associates. FOR THE DEFENDANT: Adv L Hollander Instructed by Hirschowitz Flionis Attorneys.

[1] At 1142C-F

[2] Emphasised added.

[3] AT 535G-I.

[4] Emphasis added.