Van Zyl v Joubert (62990/2015) [2017] ZAGPPHC 326 (30 June 2017)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 62990/2015

Not reportable

Not of interest to other judges

Revised.

30/6/2017

In the matter between

J.M. VAN ZYL Applicant/Plaintiff

and

CHRISTIAAN JOUBERT Respondent/Defendant

JUDGMENT

SARDIWALLA AJ

Introduction

[1] The Applicant in this matter seeks to amend his Particulars of Claim and the Respondent objects to the amendment. The underlying matter relates to an oral agreement concluded between the Applicant an Respondent on or about 2000 pertaining to the relocation of the Applicant and his wife to the farm where the parties are presently residing, and the obligation upon Respondent to transfer the farm to a private company with an allocation of 25% of the shareholding in the company to Applicant.

[2] The matter has a lengthy and protracted procedural background, which is summarised below:

2.1. Summons was issued on 30 August 2013 ;[1]

2.2. Respondent filed a Notice of Exception on 1 November 2013;[2]

2.3. Applicant filed amended Particulars of Claim on 8 January 2014;[3]

2.4. Applicant filed amended Particulars of Claim on 7 April 2014 ;[4]

2.5. Respondent filed an Exception on 23 June 2014;[5]

2.6. Applicant filed amended Particulars of Claim on 5 September 2014;[6]

2.7. Respondent filed a Plea on 16 October 2014;[7]

2.8. Applicant filed the Notice of Intention to Amend relevant to the present application on 22 February 2016 ;[8]

2.9. Respondent filed a Notice of Objection to the intended amendment of Applicant's Particulars of Claim on 10 March 2016;[9]

2.10. Applicant served and filed this application for amendment on 7 April 2016;[10]

Applicant's Case

[3] The Applicant's case can be summed up in five parts: Firstly, that the amendment should be allowed because it is neither ma/a fides nor will it cause and injustice. Secondly, that an exception on failure to disclose a cause of action can only succeed if the Respondent

proves that on any reasonable construction no cause of action has been disclosed. Thirdly, that the agreement between the parties does not amount to an alienation of land as defined by the Alienation of Land Act[11] and therefore is not contrary to its provisions. Fourthly, the Applicant's claim for the securing of the registration of a new company, and transfer of 25 % of shares in the company falls outside the ambit of "debt' and therefore outside of the provisions of the Prescription Act.[12] Finally, that the agreement should be construed taking cognisance of a constitutional dispensation that recognises constitutional values of good faith, Ubuntu and dignity, freedom and equal worth of contracting parties.

Respondent's Case

[4] The Respondent objects to the amendment and relies on two grounds: Firstly, that the Applicant seeks the amendment to enforce an illegal contract, such Contract being contrary to the provisions of the Alienation of Land Act. Secondly, that the Applicant seeks to introduce a claim he had previously abandoned and that has been extinguished by prescription.

Issues

[5] The parties raise a number of contentious and issues meritorious of determination however, it must be noted this application is limited to the very narrow question of whether or not the amendment should be allowed. Therefore, the questions of legality of the oral contract, prescription and the constitutional approach to contract are not before this Court. Therefore, the issues to be determined can be summed up as:

5.1. What is the Courts' approach to amendment of pleadings?

5.2. Should an amendment be allowed?

Determination

What is the Court's approach to amendment of pleadings?

[6] The Court in Krischke v Road Accident Fund[13] summed the approach towards amendment of pleadings as followed:

"Applications for the amendment of pleadings are normally granted if bona fide and if prejudice that cannot be cured by a postponement or an order of costs is absent. The party seeking an amendment bears the onus of showing that it is made bona fide and that there is an absence of prejudice "[14]

[7] This position is considered with regard to the findings in: Trans-Drakensberg Bank Ltd (underjudicial management) ·v Combined Engineering (Pty) Ltd[15] where it was stated that:

"... the aim should be to do justice between the parties by deciding the real issues between them. he 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. "

[8] Therefore, it seems settled that the approach to amendment of pleadings is to allow them in as far as no prejudice is caused to the other party that cannot be cured with a postponement and cost order. It is settled that while procedural law must be followed, this should not fly in the face of determining the rights or obligations of parties. Uniform Rule of Court 28 is provided because it is understood that a party may not get everything right at the first instance and therefore if the amendment is sought without ma/a tides and undue prejudice to the other party it should be allowed.

Should an amendment be allowed?

[9] The Respondent raised two grounds for objecting to this amendment that the Applicant seeks"

9.1. the amendment to enforce an illegal contract, such Contract being contrary to the provisions of the Alienation of Land Act

9.2. to introduce a claim he had previously abandoned and that has been extinguished by prescription.

[10] In furtherance of this objection the Respondent relies on De Klerk and Another v Ou Plessis and Others[16] where it was held that save in exceptional cases, an amendment ought not be allowed where its introduction into the pleading would render the pleading excipiable. The Respondent relies on this dictum and argues that allowing the amendment would render the pleadings excipiable because it would

allow the Plaintiff to seek to enforce an illegal contract and to pursue a claim that has prescribed.

[11] The Respondent also relies on Krischke v Road Accident Fund[17] where it was held that:

“The objection raised in the present matter goes to the root of the plaintiff's claim. In the present matter, the amendment is dependent upon the plaintiff's proving that the proposed amendment is not bad in law. In these circumstances, I determined that the proposal made by plaintiff's counsel to the effect that I should decide solely on the amendment, without proffering a determination on the plaintiff's amended clauses, was not the proper approach to adopt in this matter. Once it is established that the plaintiff's claim is bad in law, then a fortiori, the application should inevitably fail. This would at least settle part of the plaintiff's claim in a cheap and easy fashion. In a matter such as the present one, where there is a point of law to be decided, which will dispose of the case in whole or in part, then a Court should determine that point of law. Thereafter, the necessary consequences would follow where necessary. Therefore, I propose dealing with the issue as to whether the cause raised in the plaintiff's notice of intention to amend is bad in law or not."

[12] While the dictum above is persuasive it is distinguishable from our present case. In the Krischke case prescription in terms of the Road Accident Fund Act[18] was raised and the Court found that it could not solely allow the amendment without deciding on prescription because the claim would be bad in law if allowed. Given this reasoning the Court took a decision on the point of law. The Respondent also relies on the provisions of the Alienation of Land Act and argues that allowing the amendment would allow the Applicant to pursue an illegal contract. The Plaintiff has gone through great length in his Heads of Argument to outline the arguments that he propounds would render his claim not to run afoul of the Alienation of Land Act and the Prescription Act. A number of questions that must be determined will inform the legal question, the first is the nature of the agreement. While the Applicant argues the oral agreement concluded does not amount to an alienation of land the Respondent argues that it does. This Court would be remiss to purport to answer questions on prescription and alienation without recognising it is not the based placed to make the factual determination on the nature of the agreement between the parties. Therefore, this case is distinguishable from that of Krischke because the amendment sought would not necessarily render the claim to be bad in law because it is at this point unclear what the nature of the agreement between the parties is.

[13] This Court is also guided by the finding in: Ramatshimbila v Phaswana[19] where the Supreme Court of Appeal held that:

"In order to succeed, an excipient has the duty to persuade the court that upon every interpretation which the pleading in question can reasonably bear, no cause of action is disclosed; failing this, the exception ought not to be upheld."

For this Court to be convinced that the rule in De Klerk applies it would have to be convinced that on every interpretation of the amended pleadings no cause of action is disclosed. That is not the case and the Applicant has, as I mentioned, disclosed a cause of action. Similar reasoning applies to the Respondent's objection based on prescription, the applicant has argued that the Prescription Act may not apply because of the definition of 'debt' and the Respondent did not counter this argument.

Conclusion

[14] Therefore, I conclude that the amendment should be allowed. The Applicant raises some meritorious questions that ought to be ventilated in a trial. I am not convinced that the dicta in Krischke and De Klerk apply to this case and therefore find that amendment is allowed because it is bona fide and any prejudice to the Respondent can be cured with a postponement or a cost order.

Order

[15] I accordingly make the following order:

a) The Applicant's application to amend the Particulars of Claim is upheld.

b) The Trial Court shall determine costs of this application.

_______

Sardiwalla AJ

Acting Judge of the High Court, Pretoria

Heard on :01 June 2017

Delivered on : 30 June 2017

For the Applicant :Adv .: J

G BERGENTUIN SC

Instructed by

:Cilliers & Reynders Attorneys

For the Respondent :Adv.: S

D WAGENER SC

Instructed by

: Weavind & Weavind Inc

[1] Record: page 42.

[2] Record: page 58.

[3] Record: page 60.

[4] Record: page 81.

[5] The Respondent, for obvious reasons, as mentioned later herein, did not attach this Exception to the Answering Affidavit, but same should be part of the Court file.

[6] Record: page 90.

[7] Record: page 105.

[8] Record: pages 7 - 16.

[9] Record: page 21.

[10] Record: page 2.

[11] No. 68 of 1981.

[12] No. 68 of 1969.

[13] 2004 (4) SA 358 (W) at para 9.

[14] This sums up the findings in: Macduff and Co (in Liquidation) v Johannesburg Consolidated Investment Co Ltd 1923 TPD 309; Rosenberg v Bitcom 1935 WLD 115; Dumasi v Commissioner, Venda Police 1990 (1) SA 1068 (V) at 10716; Brandon v Minister of Law and Order and Another 1997 (3) SA 68 (C) at 75).

[15] 1967 (3) SA 623 D.

[16] 1995 (2) SA 40 (T), at 431 - 44A

[17] Supra at note 13 at Para at Para 10.

[18] No. 56 of 1996.

[19] (199/13) [2014] ZASCA 117.