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REPUBLIC OF SOUTH AFRICA

OFFICE OF THE CHIEF JUSTICE

(GAUTENG DIVISION, PRETORIA)

25/8/2015

CASE NO: 17290/13

DELETE WHICHEVER IS NOT APPLICABLE

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

____________                       ____________

DATE                                     SIGNATURE

IN THE MATTER BETWEEN

MEC FOR EDUCATION, MPUMALANGA                                                                 Plaintiff

and

WILLEM JOHANNES PAULUS KOTZE                                                               Defendant

JUDGMENT

LEGODI J

HEARD ON: 19 AUGUST 2015

JUDGMENT HANDED DOWN: 25 AUGUST 2015

Introduction

[1] Before me, is an application for the amendment of the plaintiff's particulars of claim and an application for the striking out of the plaintiff's particulars thereof As regards the striking out application, the challenge is that it amounts to an irregularity. The challenge against the application for leave to amend is based on three grounds. The first challenge is that the plaintiff is late with its application and that in the absence of an application for condonation, it cannot be heard. The second challenge is that, the notice of intention to amend the particulars of claim, has been signed by a person who is not an advocate and or by a person who has not indicated that he or she is entitled to appear in the High Court as contemplated in section 4(2) of the Right of Appearance in Court Act 62 of 1995. The last ground of attack is that the plaintiff's claim against the defendant has in any case prescribed. There are other applications and reliefs sought, which I think is not necessary to deal with once a decision is made regarding the two applications mentioned above. If I have to deal with them, it would be very brief.

[2] I prefer to start with the defendant's application to strike out. It seeks to summarily dispose of the plaintiff's application for leave to amend its particulars of claim. The grounds upon which the striking out or dismissal is based, is somewhat obscured. Obscured in the sense that it is based on the same grounds as those raised in the opposition to the application for amendment of the plaintiff's particulars of claim.

[3] The plaintiff takes a swipe at this application to strike out its particulars of claim. It is contended that it amounts to an irregular step in that the defendant objected in terms of subrule (3) of Rule 28 to the proposed amendment and that therefore the plaintiff was entitled to proceed in terms of subrule (4), which provides that if an objection which complies with subrule (3) is delivered within the period referred to in subrule (2), the party wishing to amend may, within 10 days, lodge an application for leave to amend. Subrule (3) provides that an objection to a proposed amendment shall clearly and concisely state the grounds upon which the objection is founded. The defendant objected by setting out clearly three grounds of objection to the proposed amendment as contemplated in subrule (3) and I deal later hereunder with those grounds.

[4] The present application for leave to amend is said to be in terms of subrule (4). The defendant on 19 September 2014, having noted his objection in terms of subrule (3), found it deem on the same day, to prepare settle and deliver notice to strike out. In other words, it sought to prevent allow the process under Rule 28 to take its cause. This is branded in the plaintiff's original written heads of argument as an irregular step for which the defendant 'could not institute the application proceedings until he had the amendment proceedings set aside, and he did not do so'.

[5] The defendant has raised failure to apply for condonation as a ground of objection to the proposed amendment. He cannot have it both. I think the defendant has shot himself on the foot by wanting to deal with the plaintiff's intended amendment in a two-way process. To allow that, would be an abuse of court processes.

[6] The application by the defendant to strike out, although not specifically so stated, either in the notice of objection or in the affidavit substantiating the said striking out, is based on an irregular step taken by the plaintiff. A step contemplated in Rule 30, is irregular if it advances the proceedings one step nearer completion. In the instant case, the plaintiff launched an application for leave to amend its particulars of claim in attempt to take its claim against the defendant one step towards its conclusion.

[7] A step taken by the plaintiff is said to be contrary to the order granted on 17 June 2014. In paragraph 6 of the founding affidavit to the application to strike out, the defendant states:

“The notice of proposed amendment on 8 September 2014 did not comply with the time periods provided for in the order of her, Ladyship Justice Hassim on 17 June 2014. This notice is not accompanied by a form of Application for Condonation or extension of the time periods as contained in the order and is therefore non scripto”.

[8] The shooting on the foot came about when the defendant in the same breath delivered a notice of opposition in terms of subrule (3) of Rule 28 raising similar grounds as in the application for the striking out and thus triggered the plaintiff to launch the present application for leave to amend in terms of subrule (4) of Rule 28.

[9] Subrule (2) of Rule 30 provides:

“(2) An application in terms of subrule (1) shall be on notice to all parties specifying impropriety alleged and may be made only if-

(a) the applicant has not himself taken a further step in the cause with the knowledge of the irregularity;

(b) the applicant has, within ten days, of becoming aware of the steps, by written notice afforded his opponent an opportunity of removing the cause of complainant within ten days;

(c) the application is delivered within fifteen days after the expiry of the second period mentioned in paragraph (b) of subrule (2).

[10] In my view, the defendant has himself taken a further irregular step by delivering a notice of objection in terms of subrule (3) in the cause with the knowledge of irregularity articulated in paragraph 6 of its founding affidavit and quoted earlier in this judgment. The application for leave to amend the particulars of claim is a product of such an irregular step. The objection in terms of subrule (3) should never have been delivered in the first place. Had that happened, only the application to strike out, based on an irregular step by the plaintiff would have been before me. I have however decided to hear both applications at the same time, as it is convenient to do so.

[11] Furthermore, on 6 November 2014, the plaintiff served an application for leave to amend presumably as is contemplated in subrule (4) of Rule 28. On 11 November 2014, the defendant delivered notice of intention to oppose the application. On 20 November 2014 the defendant delivered his answering affidavit. This was done in the face of the application to strike out based on an 'irregular step' as articulated in paragraph 6 of the founding affidavit to the striking out application.

[12] No wonder why the plaintiff delivered a notice in terms of Rule 30, that is, to strike out the defendant's application for striking out. The ground of challenge by the plaintiff is that on 19 September 2014 and whilst the process of amendment was underway, the defendant delivered an application to strike out on the grounds as set out earlier in this judgment. I must pause for a moment and say this application by the plaintiff to strike out, has also been overtaken by events and is also tainted by an irregular step taken by the plaintiff. The application by the defendant to strike out was delivered on 19 September 2014. Instead of filing the application to strike out the defendant's application to strike out, based on an irregular step by the defendant, the plaintiff proceeded late as might have been, to launch the present application in terms of subrule (4) of Rule 28 and thus taking the intended amendment, a step further. Anything like this, borders around abuse of court processes. Whatever way you look at it, both applications to strike out, ought to be dismissed. I now turn to deal with the application for leave to amend.

Late filing of the application for amendment

[13] On 19 March 2013, the plaintiff instituted action proceedings against the defendant claiming an amount of over R4 million. An exception to the particulars of claim as disclosing no cause of action was noted and was upheld on 17 June 2014 by Hassim AJ. The plaintiff was then given an opportunity to amend its particulars of claim within 15 days from the date of the order. The time period allowed for the intended amendment would have expired on the 8 July 2014, had the plaintiff not delivered an application for leave to appeal against the upholding of the exception. Application for leave to appeal was noted on 3 July 2014, but dismissed on 18 August 2014.

[14] However, the plaintiff instead of proceeding to deliver its amended particulars of claim within 15 days from 18 August 2014 filed the proposed amendment on 8 September 2014 allegedly in terms of Rule 28(1) and in the original written heads of argument, of relevance, is submitted as follows:

“6. The notice of intention to amend particulars of claim is made in terms of Rule 28 of the Uniform Court Rules. In other words it is not an amendment made in terms of the court order.

7. There is a distinction between an amendment made in terms of the court order and an amendment made in terms of the Rules of the above Honourable Court which must be preceded by a notice in terms of Rule 28(1).

8. Where an amendment was made in terms of the court order one would simply file the amended pages in view of the fact that the Court would have already granted leave to amend. On the other hand an amendment made in terms of Rule 28 is preceded by the notice of intention to amend as was the case in this matter. We submit that an amendment in terms of Rule 28 can be made at any time before judgment and even on appeal”.

[15] I am unable to agree with this submission. Rule 28 referred to in the quotation above, has other subrules and of relevance, subrule (6) and (7) thereof, provide as follows:

“(6) Unless the court otherwise directs, an amendment authorises by an order of the court may not be effected later than 10 days after such authorization.

(7) Unless the court otherwise directs, a party who is entitled to amend shall effect the amendment by delivery each relevant page in its amended form”.

[16] The distinction sought to be made in paragraphs 7 and 8 of the plaintiff's heads of argument quoted in paragraph 14 above, in my view, is ill-conceived. That was overtaken by events. An exception in terms of Rule 23 was taken against the particulars of claim as disclosing no cause of action. It is important to mention that where the exception is successful, the proper course for the court is to uphold it. When an objection is upheld, it is the pleading to which the exception is taken which is destroyed. The remainder of the pleadings does not crumble. (See Group Five Building Ltd v Government of the Republic of South African (Minister of Public Works and Land Affairs) (2) SA 593 (A) at 603 C-D; see also Superior Court Practice at 81-159).The upholding of an exception to a declaration or a combined summons, does not therefore, carry with it the dismissal of the summons or of the action. The unsuccessful party may then apply for leave to amend his pleading. (see Constantory v BCE Ford Service Equiptment (PTY) Ltd 2007 (6) SA 338 (SCA) at 348 C-E). It is in fact the invariable practice of the courts, in cases where an exception has successfully been taken to an initial pleading that it discloses no cause of action, to order that the pleading be set aside and that the plaintiff be given leave. if so advised. to file an amended pleading within a certain period of time. (see Constantary supra at 348 C-F). The underling is my own emphasis.

[17] This is what had happened in the instant case. The plaintiff was so advised on 17 June 2014. That order, granting the plaintiff to amend was suspended by the filing of the application for leave to appeal, but kicked in again on 18 August 2014 when the application for leave to appeal was dismissed.  The order made on 17 June 2014 is an order which should be seen in the context of subrules (6) and (7) of Rule 28 quoted in paragraph 15 above.

[18] It is also important to mention that leave to amend is often granted irrespective of whether or not at the hearing of the argument on exception, the plaintiff applied for such leave. Where the court does not grant leave to amend when making an order setting aside the pleading, the plaintiff is entitled to make an application for such leave once judgment setting aside the pleading has been delivered. (see Group Five Building Ltd supra at 602E-H). In the present matter, the plaintiff was not entitled to apply for amendment in terms of subrule (1) of Rule 28. Subrule (1) provides that any party desiring to amend any pleading or document other than a sworn statement, filed in connection with any proceedings, shall notify all other parties of his intention to amend and shall furnish particulars of the amendment. That could not have been done here seen in the light of a leave to amend already been granted by Hassim AJ on 17 June 2014. The plaintiff has failed to effect the amendment as per the order of 17 June 2014 read together with the provisions of subrule (7) of Rule 28. All what was required of the plaintiff after the application for leave to appeal was dismissed on 18 August 2014 was to effect the amendment by delivering each relevant page in its amended form as contemplated in subrule (7) of Rule 28.

[19] There is another problem which the plaintiff is confronted with, assuming that the plaintiff was entitled to proceed with its application in terms of subrule (1) of Rule 28, without complying with the order of 17 June 2014. Its application for leave to amend was objected to in terms of subrule (3). Now, subrule (4) provides that if an objection which complies with subrule (3) is delivered within the period referred to in subrule (2), the party wishing to amend may within ten days, lodge an application for leave to amend. The notice of objection was served on 19 September 2014. On 6 November 2014 the application for leave to amend was instituted and served on the defendant on the same date. By that date, the ten days period contemplated in subrule (4) had long expired. The plaintiff did not apply for condonation of the late lodging of the application for leave to amend its particulars of claim.

[20] Counsel for the plaintiff in the alternative argued that the plaintiff in its papers has asked for condonation for non-compliance with the order of 17 June 2014 or with the time limit set out in subrule (4). There is no substantive application for condonation on notice to alert the defendant to properly challenge the application for such condonation basis of which is scantily put forward in the affidavit by the plaintiff. For these reasons, I am not inclined to deal with the matter as if there is proper application for condonation before me. The result of this is that the plaintiff's application for leave to amend is destined to be struck off from the roll. I do not find it necessary to deal with the other defences raised with reference to the application for leave to amend for reasons that the application is prematurely before me. It suffices to mention that there seem to be no merits in the other two defences referred to briefly in paragraph 1 of this judgment.

Costs

[21] Both parties in my view, have substantially succeeded. An appropriate order for costs will therefore be that each party to pay his or her own costs.

[22] Consequently an order is hereby made as follow:

22.1 The plaintiff's application for leave to amend its particulars of claim is hereby struck off from the roll.

22.2 The plaintiff's and the defendant's applications to strike out are hereby dismissed.

22.3 Each party to pay his or her own costs.

M F LEGODI

JUDGE OF THE HIGH COURT

FOR THE APPLICANT:           ADV. VS NOTSHE SC

                                                      ADV. M GWALA

INSTRUCTED BY:                   MZUZU ATTORNEYS

                                                    C/O NGENO & MTETO INC.

                                                    425 Standard Bank Chambers

                                                    Church Square, PRETORIA

                                                    TEL: 012 323 0154

                                                    REF: Mr Ngeno

 

FOR THE RESPONDENT:     ADV SNYMAN

INSTRUCTED BY:                  BRANDMULLERS ATTORNEYS

                                                   C/O JORDAAN ATTORNEYS

                                                   73 Thomas Edison Street

                                                   Menlo Park, PRETORIA

                                                   TEL: 012 346 1840

                                                   REF: Lizarie Smit/mvr/A1093

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