Trident Steel (Pty) Ltd v Greenvest 101 (Pty) Ltd (494/06) [2008] ZAECHC 90 (19 June 2008)

19

IN THE HIGH COURT OF

SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO. 494/06

DATE HEARD: 11/2/08

DATE DELIVERED: 19/6/08

NOT REPORTABLE

In the matter between:

TRIDENT STEEL (PTY) LTD

APPLICANT

and

GREENVEST 101 (PTY) LTD

RESPONDENT

A trial, in which the applicant was the defendant and the respondent was the plaintiff, was postponed when the applicant indicated that it wished to amend its plea. This application concerns whether it is entitled to do so. The respondent argued that the explanation for wishing to amend the plea at a late stage was not acceptable and that it stood to be prejudiced if the amendment is allowed. These issues were canvassed in the judgment and the court duly granted the applicant leave to amend its plea.

JUDGMENT

PLASKET, J:

[1] This judgment concerns an application brought by Trident Steel (Pty) Ltd, the defendant in a trial before me, to amend its plea. It is opposed by the plaintiff in that trial, Greenvest 101 (Pty) Ltd. I shall refer in this judgment to the applicant as Trident Steel and to the respondent as Greenvest.

[A] THE PLEADINGS

[2] Slipknot Investments 777 (Pty) Ltd, represented by Mr J.P. Du Plessis, purchased erf 50, New Brighton, Port Elizabeth from Trident Steel. The agreement of sale provided for the nomination, by Slipknot, of a third party as purchaser. Slipknot nominated Greenvest as purchaser. Registration of transfer of the property into the name of Greenvest was duly effected.

[3] It is alleged in paragraph 6.1 of Greenvest’s particulars of claim that at all relevant times, both before and after the conclusion of the agreement of sale, Trident Steel’s representatives advised Du Plessis that ‘no long term agreement of lease had been concluded or existed’ in respect of the property, or alternatively, that they failed to disclose to him that any long term lease ‘had been concluded or existed’.

[4] Paragraph 6.2 makes the allegation that in ‘making the aforesaid representations, alternatively in failing to disclose as aforesaid’, Trident Steel was represented ‘from time to time by its authorised representatives, being estate agent Warren Jack, defendant’s director Mr Ernie Behr and defendant’s director Mr Richard Martin’. Paragraph 6.3 contains the averment that these representatives were aware that Slipknot and Greenvest ‘wished to purchase the aforesaid premises for the purposes of commercial investment and that accordingly the existence of any such long term lease would impact upon the viability of the premises as a commercial investment’. The existence of the long lease and its terms were, it was stated in paragraph 6.4, ‘materially relevant’ to the sale. Paragraph 6.5 alleges that in making the misrepresentations or in failing to disclose the existence of the lease, Trident Steel ‘acted fraudulently, alternatively negligently’.

[5] Greenvest elected not to cancel the agreement of sale but rather to abide by it and claim damages sustained by it as a result of the misrepresentation or non-disclosure.

[6] Trident Steel filed a special plea of prescription and, in its plea over, dealt with paragraphs 6 and 7 of the particulars of claim by pleading: ‘The defendant denies these paragraphs.’

[7] In its request for further particulars, Greenvest asked the following in relation to the denial quoted above:

‘4.1 Does the defendant admit that Warren Jack represented the defendant in the negotiations which preceded the sale? If so, the defendant is required to state who it alleges Jack represented.1

4.2 Does the defendant admit or deny that Jack made the representation alleged?

4.3 Does the defendant admit or deny that it was represented in its dealings with the plaintiff by its directors Behr and Martin?

4.4 Does the defendant contend that the existence of a long-term agreement of lease was disclosed to the plaintiff? If so, the defendant is required to state:

4.4.1 precisely when such disclosure was made;

4.4.2 in what manner such disclosure was made;

4.4.3 by whom on behalf of the defendant and to whom on behalf of the plaintiff such disclosure was made.’

[8] Trident Steel’s reply to this was:

‘4.1 The defendant avers that prior to the conclusion of the sale agreement (25 November 2002) Warren Jack was given a mandate by the defendant to sell the premises, for and on behalf of the defendant.

4.2 Deny.

4.3 Admit.

4.4 The plaintiff is referred to paragraph 1.2 above.’

[9] Paragraph 1.2 deals with the special plea but in it Trident Steel alleges that when the sale was concluded and when Greenvest was nominated it, represented by Du Plessis, was aware ’that Bosal Afrika had taken occupation of the premises pursuant to an oral agreement of lease concluded between the defendant and Bosal Afrika’. The same paragraph alleges that ‘the existence of the oral Bosal lease was brought to the attention of Slipknot and/or the plaintiff (represented by Du Plessis) during the course of conversations held between Du Plessis and W Jack and/or T Terblanche and/or L Vorster and/or W Bodenstein’.

[B] THE PROPOSED AMENDMENT

[10] The proposed amendment seeks in effect to add paragraphs 6.2 to 6.7 in the alternative to paragraph 6.1 of the plea. The proposed paragraph 6 of the plea would reads as follows:

The defendant denies these paragraphs.

Alternatively, and in any event:

The defendant avers that prior to the conclusion of the sale agreement (25 November 2002) Warren Jack (“Jack”) was given a mandate by the defendant to sell the premises, for and on behalf of the defendant.

At all material times hereto, Jack was the plaintiff’s duly authorised agent for the purpose of the conclusion of a lease agreement between the plaintiff and Bosal Afrika.

On or before 4 December 2002, Jack, in his capacity as the plaintiff’s agent, became aware that an oral long term agreement of lease (“the lease”) had been concluded or existed in respect of the premises.

In so doing

Jack had actual knowledge of the existence of the lease;

Such knowledge constituted a matter falling within the scope of Jack’s authority:

Jack had a duty to communicate the said knowledge to the plaintiff;

Jack at all material times hereto had an opportunity to communicate the said knowledge to the plaintiff.

In the premises:

Jack’s knowledge aforesaid, is to be imputed to the plaintiff; and

It is denied that a representation was made by representatives of the defendant.

Save for the aforesaid, the allegations contained herein are denied.’

[11] Trident Steel also seeks to make a consequential amendment to paragraph 2 of its special plea of prescription by deleting the words ‘to the knowledge of the plaintiff’ and substituting them with the words in italics below so that paragraph 2 would read as follows:

‘The claims became due, to the actual knowledge of the plaintiff, alternatively, the imputed knowledge of the plaintiff (as particularised in paragraphs 6.2 to 6.6 hereafter as contemplated in section 12(3) of the Prescription Act, more than three years prior to the interruption of prescription by service of the summons on the defendant on 17 February 2006, i.e. before 18 February 2003’.

[12] The chronology of events leading up to the amendment – certainly those from when the trial commenced – are not in issue. During his opening address, Mr Ford, who appeared for Greenvest together with Mr Allcock, stated that the court would hear evidence that ‘upon acceptance of the offer by the defendant, Mr Du Plessis, through the agency of, through the negotiations of Warren Jack, commenced negotiations with Bosal for the leasing of the premises … ‘.

[13] Jack was the first witness called by Mr Ford. In his evidence in chief, Jack referred to Du Plessis as ‘my client’. This was taken further in his cross-examination by Mr Eyles, who appeared for Trident Steel, as the following passage illustrates:

‘For the purposes of concluding any lease between Greenvest and Bosal, you would have been Greenvest’s agent? – Yes.

Yes and in fact you even referred in October in your evidence in chief in October 2002 you referred to Mr Du Plessis as your client by then, that is the way you saw him, and you were acting as his agent for the purposes of concluding the lease? – That is correct.’

It was also Jack’s evidence, given during cross-examination, that he had knowledge that a long term, oral lease was in existence between Trident Steel and Bosal Afrika

[14] Later still in Jack’s cross-examination, the relationship between him and Du Plessis was again explored. The following passage of his evidence is significant:

‘Now if I made a note of your evidence correctly yesterday, Mr Jack, you told His Lordship that, in your view, as from October 2002, you were the plaintiff’s agent for the purposes of concluding a lease between Greenvest and Bosal Afrika? – Yes.

Is that correct? – Yes.

Now as at October if you were the plaintiff’s agent for the purposes of Slipknot concluding the lease, because the nomination to Greenvest only took place on 10 December 2002? – Yes.

You agree with that as well. Now I put it to you that you had actual knowledge of the existence of the oral long term lease by 4 December 2002, on the terms and conditions as set out in the three pages that were sent to you and the unsigned lease agreement. Do you agree with that? – Yes.

And do you agree with the proposition that I put to you now, that in executing your mandate to Mr Du Plessis, you would have been obliged to inform him of any facts that would have adversely affected his position as a landlord and in concluding a lease? – Yes, that is correct.

And, in fact, you had a duty to disclose the existence of the lease agreement to him? – Yes.

And would it be correct for His Lordship to accept that you were never prevented in any way from disclosing this to Mr Du Plessis? – No, I wasn’t.

And you were in no way ever prevented from communicating with him in any way? – No.’

[15] In his evidence in chief, Du Plessis also indicated that Jack was his agent for purposes of the lease. For instance, he said, when the deed of sale had been signed, that ‘I then said to Warren, right, now we’ve got to conclude the lease agreement, and to me it sounded like it was purely a formality to get the lease agreement in place, because myself and Warren agreed before I made the offer on the basis of, if I had to tenant the building, what my terms and conditions would be’. He proceeded to mention a number of steps taken by Jack in the execution of his mandate.

[16] When Du Plessis was cross-examined, this aspect was explored as follows:

‘Mr Du Plessis you spoke about a mandate that you gave to Mr Jack yesterday. What was that mandate? – That was to assist me in concluding the lease with Bosal.

In other words to conclude a lease between Greenvest and Bosal Afrika? – Correct, as per the offer to let dated the 2nd of the 12th 2002.

…

So Mr Jack for the purposes of concluding that lease was your agent? – That is quite rightly so.

Now Mr Jack’s evidence was that he had actual knowledge of the existence of an oral long term lease based on the terms and conditions of the three pages as well as the lease document which was sent to you, and I will take you to these documents, as at 4 December 2002. You heard his evidence? – Yes, I did.

And the three documents which I referred to are to be found in the bundles at pages 74 to 76 and the lease agreement which I referred to is the written document which was sent to you by him on the 2nd of December 2002 as per document 76A. – I agree, but I do not agree with the oral lease agreement. It was never communicated to me that there was an oral lease agreement in place.

I am saying that as at 4 December 2002 Mr Jack told us that he had actual knowledge of the existence of an oral, long term lease on the terms and [interrupted] – Well, I wasn’t aware of that.

You were not aware of that. And he also told His Lordship that insofar as this oral agreement of lease may have adversely affected you in any way, he was obliged to tell you of the existence of the lease. You recall that? – Well, surely if I buy a property vacant in my offer to purchase I would assume that there is going to be no lease.

Yes, now I put it to you Mr Du Plessis that Jack’s knowledge of the existence of the long term oral lease is in law to be imputed to you. You don’t have to answer anything [interrupted] – I would like to comment. I just find it difficult to believe that I would set up how many meetings with Warren Jack and Bosal to discuss the finalisation of a long term lease if there was a lease agreement in place.’

[17] Mr Eyles continued with the cross-examination of Du Plessis, touching from time to time on the issue of Jack’s agency in relation to the lease between Greenvest and Bosal Afrika. After the lunch break, however, Mr Ford registered what he called a pre-emptive objection to the line of questioning that followed from Jack’s agency, namely whether Jack’s knowledge could be imputed to Du Plessis and hence Greenvest. His objection was based squarely on the contention that this was not covered by the plea and was not an issue before me. Mr Eyles, on the other hand, submitted that it was an issue that the pleadings allowed him to canvass. He then stated, however, that, on the basis of what Mr Ford had said, he would have to ‘consider my position in that regard and whether I need to do anything about it as the matter continues’.

[18] As it happened it was decided that the issue should be argued and dealt with immediately. I heard argument and made a ruling the following morning. My ruling was to the effect that the line of questioning that had been objected to was irrelevant as it was not covered by the pleadings. I thus upheld the objection. Mr Eyles then indicated that he had prepared a notice of amendment and Mr Ford stated that he had to take instructions on whether to oppose the amendment. Those instructions were immediately forthcoming and the matter was postponed for a substantive application to be brought.

[C] THE LEGAL

PRINCIPLES

[19] Rule 28 of the Uniform Rules regulates the procedure to be followed when a party seeks to amend a pleading. The application of the rule involves the exercise of discretion by the court to which an application to amend has been made. That discretion must obviously be exercised judicially.2 In Moolman v Estate Moolman and another3 Watermeyer J held that the ‘practical rule adopted seems to be 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, 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 pleading which it is sought to amend was filed’.

[20] Why this is the correct approach to applications to amend is crisply stated by Wessels J in Whittaker v Roos and another; Morant v Roos and another:4

'This Court has the greatest latitude in granting amendments, and it is very necessary that it should have. The object of the Court is to do justice between the parties. It is not a game we are playing, in which, if some mistake is made, the forfeit is claimed. We are here for the purpose of seeing that we have a true account of what actually took place, and we are not going to give a decision upon what we know to be wrong facts. It is presumed that when a defendant pleads to a declaration he knows what he is doing, and that, when there is a certain allegation in the declaration, he knows that he ought to deny it, and that, if he does not do so, he is taken to admit it. But we all know, at the same time, that mistakes are made in pleadings, and it would be a very grave injustice, if for a slip of the pen, or error of judgment, or the misreading of a paragraph in pleadings by counsel, litigants were to be mulcted in heavy costs. That would be a gross scandal. Therefore, the Court will not look to technicalities, but will see what the real position is between the parties.'

The same approach is evident in Rosenberg v Bitcom5 in which Greenberg J referred to the fact that, although the granting of an amendment amounts to the granting of an indulgence, ‘the modern tendency of the Courts lies in favour of an amendment whenever such an amendment facilitates the proper ventilation of the dispute between the parties’.

[21] Caney J, in Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and another6 engaged in a comprehensive review of the case law on amending pleadings. Having done so, he held:7

‘These observations, in all four Provinces, make it clear, I consider, that the aim should be to do justice between the parties by deciding the real issues between them. The mistake or neglect of one of them in the process of placing the issues on record is not to stand in the way of this; his punishment is in his being mulcted in the wasted costs. The amendment will be refused only if to allow it would cause prejudice to the other party not remediable by an order for costs and, where appropriate, a postponement. It is only in this relation, it seems to me, that the applicant for the amendment is required to show it is bona fide and to explain any delay there may have been in making the application, for he must show that his opponent will not suffer prejudice in the sense I have indicated. He does not come as a suppliant, cap in hand, seeking mercy for his mistake or neglect. Having already made his case in his pleading, if he wishes to change or add to this, he must explain the reason and show prima facie that he has something deserving of consideration, a triable issue; he cannot be allowed to harass his opponent by an amendment which has no foundation. He cannot place on the record an issue for which he has no supporting evidence, where evidence is required, or, save perhaps in exceptional circumstances, introduce an amendment which would make the pleading excipiable … or deliberately refrain until a late stage from bringing forward his amendment with the purpose of catching his opponent unawares … or of obtaining a tactical advantage or of avoiding a special order as to costs … .’

[22] The principles applicable to applications to amend were summarised thus by Henochsberg J in Zarug v Parvathee NO:8

‘A large number of decisions were quoted to me but I do not think it necessary to refer to all of them, suffice it to say that it seems that the general tendency of the decisions of our Courts, following in this respect the trend of English judicial opinion, has been in the direction of allowing amendments where this can be done without prejudice to the other party, and, I think that the following legal principles can be gathered from the decisions quoted to me:

1. That the Court will allow an amendment, even though it may be a drastic one, if it raises no new question that the other party should not be prepared to meet.

2. With its large powers of allowing amendments, the Court will always allow a defendant, even up to the last moment, to raise a defence, such as prescription, which might bar the action.

3. No matter how negligent or careless the mistake or omission may have been and no matter how late the application for amendment may be made, the application can be granted if the necessity for the amendment has arisen through some reasonable cause, even though it be only a bona fide mistake.

An amendment cannot however be had for the mere asking. Some explanation must be offered as to why the amendment is required and if the application for amendment is not timeously made some reasonably satisfactory account must be given for the delay. Of course if the application to amend is mala fide or if the amendment causes an injustice to the other side which cannot be compensated by costs, or in other words, if the parties cannot be put back for the purposes of justice in the same position as they were in when the pleading it is sought to amend was filed, the application will not be granted.’

[D] THE APPLICATION

[23] Greenvest objected to Trident Steel’s notice of objection on three grounds. They are that: (a) the proposed amendment sought to introduce ‘a new issue of substance which in effect constitutes a new defence to plaintiff’s claims and which is also relevant to the issue of prescription raised by the defendant in defendant’s special plea’; (b) it sought to raise these issues ‘at an extremely late stage’ in the proceedings; and (c) Greenvest would be prejudiced by the amendment in a way that cannot be remedied by a postponement or costs in that ‘the whole preparation and presentation’ of its case would be compromised. Greenvest concluded by saying:

‘In the absence of acceptable explanation one is driven to the conclusion that this belated application to amend has been delayed in order to obtain tactical advantage as set out above, to endeavour to ambush the plaintiff and to prejudice the plaintiff’s presentation and preparation of its case. It follows that the application to amend is not bona fide.’

[24] The objection resulted in this application in which Trident Steel applied for orders granting the amendment, directing it to pay the wasted costs occasioned by the amendment, including the costs of the application on the unopposed scale, and directing Greenvest to pay the costs of the application in the event of it opposing the application.

[25] The first objection – the introduction of a new defence – can be dealt with briefly. First, Trident Steel points out that the amendment merely seeks to introduce an alternative defence to those already raised. Secondly, the cases make it clear that there is no reason in principle why an amendment ought not to be allowed that has the effect of adding a new defence. For instance, in Morgan and Ramsay v Cornelius and Hollis,9 Dove-Wilson J held:

‘I my opinion the Court ought to allow all such amendments as may be necessary for the purpose of determining in an existing action or proceedings the real question between the parties. Personally I see no objection to a new ground of action or defence being stated by way of amendment, nor should I in all circumstances object to amendment merely because it goes the length of changing the character of the action, where that is necessary to determine the real question between the parties.’

[26] The second issue to be decided is whether the amendment was, as Greenvest suggested, a belated attempt to steal a march on it. That requires consideration of Trident Steel’s explanation for the amendment. I have set out above the circumstances giving rise to the amendment. From that it is apparent that Jack’s agency was raised by counsel for Greenvest in his opening address, confirmed by Jack in his evidence and also confirmed by Du Plessis: it was in other words, a fact that the plaintiff disclosed.

[27] The attorney representing Trident Steel has explained that he was about to arrange a consultation with Jack in preparation for the trial when Jack informed him that he was about to consult with Greenvest’s legal team. He decided not to consult with Jack. When the fact of Jack’s agency began to emerge, along with what he had known at the time, Trident Steel’s legal team took the view that their pleadings were broad enough to encompass this new circumstance.

[28] They put their money where their mouths were, so to speak, when this very issue was argued after Mr Ford had objected to Mr Eyles cross-examining Du Plessis on the issue. They discovered that their understanding was not correct, when I made a ruling to this effect. They immediately gave notice of the amendment.

[29] They have been criticised for not consulting with Jack. Perhaps they should have but, in my view, it cannot be said that, in the circumstances their failure to do so dooms their application to amend to failure. I say this for two reasons. First, the mere fact that the defence that they now wish to raise could have been pleaded earlier if they had consulted with Jack, is no basis to refuse the amendment in the absence of prejudice that cannot be remedied by costs or a postponement.10 Secondly, to the extent that a failure to consult with Jack and to appreciate that the existing plea was not wide enough to cover the new facts may be said to be an error of judgment, the remedy does not lie in refusing to hear the matter on the true issues: the ‘punishment’ for a ‘mistake or neglect’ by a party in circumstances such as these ‘is in his being mulcted in the wasted costs’.11 Thirdly, it was not the mere fact of Jack’s agency that was significant but his knowledge of the oral long-term lease and the legal consequences of that: this only came to light during the cross-examination of Jack.

[30] Once their error of judgment in relation to the scope of their plea became apparent, Trident Steel’s legal team took immediate steps to amend. There is no evidence to suggest that the amendment was an unacceptable attempt to obtain a tactical advantage, an attempt to ambush Greenvest, or that it was anything but a bona fide response to new facts -- ostensibly relevant to the issues before me – that emerged from Greenvest’s counsel’s opening address and from the evidence of Jack and of Du Plessis. These facts are very different to those in Florence Soap and Chemical Works (Pty) Ltd v Ozen Wholesalers (Pty) Ltd12 in which a party deliberately refrained from raising a particular issue because it believed that the other side would fabricate evidence to deal with it if it knew of the issue in advance, and in so doing it sought to obtain an unacceptable tactical advantage: in that case, the very purpose of not pleading the issue was to ambush the other side.

[31] Mr Ford expressly disavowed any suggestion that Trident Steel’s legal team had acted dishonestly or unethically: indeed, he stated that Greenvest accepted their explanation but argued that it was not an acceptable explanation. As I have held above, however, even if Trident Steel’s legal team can be criticised for an error of judgment, it does not follow that the amendment must not be allowed.

[32] The third issue is whether the amendment will result in the type of prejudice that cannot be remedied by either a costs order or a postponement. Mr Ford has argued that such prejudice is present.

[33] In order to minimise any prejudice to Greenvest, Trident Steel has made a series of tenders that included a tender of costs when the trial was postponed, and which was repeated in its application, as well as its consent to Greenvest requesting further particulars to the proposed amendment and any other issue that arises from the pleadings, its consent to Greenvest’s legal representatives consulting with Jack and Du Plessis in respect of any issue that they consider necessary, including the issues which arise from the proposed amendment, its consent to Jack being recalled in order to deal with the issues that arise from the proposed amendment and its consent to Du Plessis being re-led in chief, in order to deal with the issues that arise from the proposed amendment.

[34] These tenders are aimed at dealing with the prejudice that Greenvest alleges it will suffer if the amendment is allowed. In the light thereof, Greenvest’s counsel still contended that this was one of those cases where the damage cannot be reversed in the sense that it would be difficult to consult with Jack without it looking like one was suggesting answers to him and because Greenvest may have approached the way it dealt with its case differently if it had known that Jack’s agency was going to be such a significant issue for Trident Steel.

[35] In my view, there is no merit in the first objection. As Mr Suttner (who argued the application on behalf of Trident Steel, together with Mr Eyles) said, it amounted, in truth, to Mr Ford saying that he did not want to consult with Jack. It happens often enough that events arise that require counsel to consult with a witness when, otherwise, he or she would not be allowed to, and that witnesses are then recalled. I have no doubt whatsoever -- and I believe that his colleagues would hold a similar view to me -- that Mr Ford would act entirely properly, ethically and beyond reproach if he was to consult with Jack. Furthermore, Jack’s evidence will be evaluated on its merits, and on nothing else.

[36] The type of prejudice that is envisaged by the cases as a bar to an amendment does not include the increased risk of losing if the amendment is allowed13 or the tactical advantage that a party may either gain or lose as a result of the amendment.14 The prejudice that Greenvest appears to be concerned with here is the prejudice that arises when a witness gives answers in cross-examination that are prejudicial to the party that called him or her. That is not the type of prejudice that is envisaged as justification for the refusal of an amendment.

[37] In my view then, the amendment must be allowed. The issue that it covers is, it seems to me, one of the true issues for decision. What remains – and it is to this issue that I now turn – is the question of costs, which I shall deal with before formulating the relief.

[E] COSTS AND RELIEF

[38] In its application, Trident Steel tendered to pay the wasted costs occasioned by the amendment but it sought costs against Greenvest in the event of opposition. In argument, Mr Suttner submitted that Greenvest ought to be ordered to pay costs on an attorney and client scale because of its persistence, without foundation, to allege that Trident Steel had been mala fide in seeking to amend its plea.

[39] I do not consider it necessary to deal with this issue except to say the following. Mr Ford explained that he had used the term mala fides to capture the absence of a good explanation, rather than to suggest impropriety on the part of Trident Steel’s legal representatives in the trial. In my view, the terminology was unfortunate. It was bound to draw the pejorative construction that it did from those against whom it was directed, hence the assertion that attorney and client costs were warranted. In my view, such a costs order is not warranted in this case.

[40] I am further of the view that Greenvest was entitled to require Trident Steel to make the application – to tender an explanation which could be evaluated – but once that explanation had been given, the opposition that followed was not reasonable. I shall therefore make a costs order that splits the costs between the parties, along the lines suggested by Mr Suttner in his heads of argument and, when I do so, I shall provide for the costs of two counsel in each instance.

[41] I make the following order:

(a) Trident Steel is granted leave to amend its special plea and plea in accordance with its notices of intention to amend, served on 14 June 2007 and 26 June 2007 (which are annexures ‘FA2’ and ‘FA4’ to the founding affidavit in the application for leave to amend).

(b) Trident Steel shall pay the costs of this application up and until the perusal of the founding affidavit by Greenvest.

(c) Greenvest shall pay the costs of this application thereafter, including the costs of the argument of the application.

(d) The costs contemplated in paragraphs (b) and (c) above shall include the costs consequent upon the employment of two counsel.

_____

C.

PLASKET

JUDGE

OF THE HIGH COURT

APPEARANCES

For the applicant/defendant: Mr J.M. Suttner S.C. and Mr A.J. Eyles, instructed by Deneys Reitz, Johannesburg, and Neville Borman and Botha, Grahamstown

For the respondent/plaintiff: Mr E.A.S. Ford S.C. and Mr S. Allcock instructed by Terence Mathie, East London, and Netteltons, Grahamstown

1 It would appear that there is a typographical error in the second sentence. What was presumably intended was: ‘If not, the defendant is required to state who it alleges Jack represented.’

2 Van Winsen, Cilliers and Loots Herbstein and Van Winsen: The Civil Practice of the Suptreme Court of South Africa (4 ed) Cape Town, Juta and Co: 1997, 515. See too Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168, 243; Caxton Ltd and others v Reeva Forman (Pty) Ltd and another [1990] ZASCA 47; 1990 (3) SA 547 (A), 569G.

3 1927 CPD 27, 29. See too Affordable Medicines Trust and others v Minister of Health and others [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC), para 9.

4 1911 TPD 1092, 1102.

5 1935 WLD 115, 117.

6 1967 (3) SA 632 (D).

7 At 640H-641B. References in the quote have been omitted.

8 1962 (3) SA 872 (D), 875H-876E.

9 1910 NPD 262, 265. See too Myers v Abramson 1951 (3) SA 438 (C), 449H-450A; Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and another (note 6), 643A-C. See further, Farlam, Fichardt and Van Loggerenberg Erasmus: Superior Court Practice Cape Town, Juta and Co: 1994, B1-180 (Service 18, 2002).

10 Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and another (note 6), 642H.

11 Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and another (note 6), 640H. See too Heeriah and others v Ramkissoon 1955 (3) SA 219 (N), 222A-D.

12 1954 (3) SA 945 (T), 947E-948B.

13 In Stoltz v Pretoria North Town Council 1953 93) SA 884 (T), 886G-H Ramsbottom J held: The general rule, as I understand it, is that an amendment to pleadings ought to be allowed if that can be done without prejudice to the other side or without any prejudice which cannot be remedied by an appropriate order as to costs. There is nothing before me to show that there would be any prejudice to the plaintiff by allowing this amendment. It is true that the effect of allowing the amendment might be to defeat the plaintiff's claim, but that is not what is meant by prejudice.’

14 In Myers v Abramson (note 9), 446E-F, Van Winsen AJ held: ‘The attitude of the Courts is that pleadings are made for the Court and not the Court for the pleadings (Robinson v Randfontein Estates Gold Mining Co., Ltd., 1925 AD 173 at p. 198), and in my opinion no Court would so interpret the rules, unless thereto compelled by the plain meaning thereof, as to create a situation wherein the Court loses its power to allow such amendments to the pleadings as are designed to ensure that the real issue between the parties is determined. It may well be that to allow the interposition of an application for an amendment during the hearing of an application for absolution may deprive the party applying for absolution of a tactical advantage he might otherwise enjoy over his opponent, but I do not think that this can outweigh the major concern of the Court to secure the expeditious and most direct determination of the real dispute between the parties.