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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 1222/2014

DATE: 16 JUNE 2016

In the matter between:

HAKKIESDOORN ESTATE (PTY) LTD..........................................................................PLAINTIFF

And

WESSELS FARMING CC...............................................................................................DEFENDANT

Neutral citation: Hakkiesdoorn Estate (Pty) Ltd // Wessels Farming CC (I 1222/2014) [2016] NAHCMD 172 (16 June 2016)

Coram: Miller AJ

Heard: 01 June 2016

Delivered: 16 June 2016

ORDER

1. The application is granted.

2. There will be no order as to costs.

JUDGMENT

MILLER, AJ

[1] During the course of the trial before me the plaintiff sought an amendment of its Particular of Claim in the following aspects.

‘1. By deleting the word “distribution” in paragraph 3 thereof.

“2. By inserting the words “and sell” between the words “distribute” and “electricity” in the second line of Paragraph 3 thereof’

[2] The application is opposed by the defendant.

[3] The dispute is a contractual one over the supply of electricity to the defendant by the plaintiff and concerns the alleged non-payment of one month’s supply. 

[4] On the pleadings as they presently read the plaintiff alleges that it supplied electricity to the defendant in terms of a valid distribution licence.  The defendant did not take issue with that allegation and instead raised other defences. 

[5] During the course of the trial it became apparent that the actual supply did not take place in terms of the distribution licence but rather in terms of a valid supply licence which plaintiff says it was the holder of.

[6] The purpose of the proposed amendment is to rectify the incorrect allegation in the Particulars of Claim.

[7] I am guided by a judgment of a full Bench of this court delivered by Damaseb J.P in which Hoff J (as he then was) and Ueitele J concurred)[1]  I refer to the following passages:

‘Regardless of the stage of the proceedings where it is brought, the following general principles must guide the amendment of pleadings:  Although the court has a discretion to allow or refuse an amendment, the discretion must be exercised judicially. An amendment may be brought at any stage of a proceeding.  The overriding consideration is that the parties, in an adversarial system of justice, decide what their case is; and that includes changing a pleading previously filed to correct what if feels is a mistake made in its pleadings.  Amendments take different forms and vary from the simple and obvious typographical or arithmetic, to the more substantial such as change of front or withdrawal of an admission.  Given the latter reality, one cannot apply the same test to proposed amendments.  The case for an explanation why the amendment is sought and form it will take will also be determined by the nature of the amendment.  The less significant the amendment, the less the formality for the explanation.’

[8] In applying that reasoning to the present matter I am of the view that the propose amendment falls in the category of an amendment that is ‘less significant.’

[9] The plaintiff’s case remains that if had supplied electricity to the defendant in terms of a valid licence.  To now allege, correctly I may add, that it was a supply licence and not a distribution license does not present an entirely new course of action.

[10] There can be no prejudice for the defendant.  It remains open to it to file an amended plea, to deal with the matter in whichever way it deems appropriate.  The plaintiff’s case has not been closed and the issue, if one does arise, can be adequately met.

[11] As for as costs are concerned I find that the opposition to the application was, although not frivolous, certainly ill-advised and unnecessary. I will in the circumstances not grant any order as to costs.

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

1. The application is granted.

2. There will be no order as to costs.

Miller

Acting Judge

APPEARANCES

PLAINTIFF C E van der Westhuizen

Instructed by Etzold-Duvenhage, Windhoek

DEFENDANTS S Vlieghe

Koep & Partners, Windhoek

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