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HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO:  34169/14

11/12/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

 

IN THE MATTER  BETWEEN

 

THE GROWING BUSINESS CC                                                                              Plaintiff

and

KIVI ARCHITECTS (PTY) TIA KM ARCHITECTS                                                Defendant

 

 

REASONS FOR THE ORDER

 

LEGODI J.

 

HEARD ON: 17NOVEMBER 2015

JUDGMENT HANDED DOWN: DECEMBER 2015

 

[1] This was an application for the amendment of the defendant's plea. The amendment was opposed by the plaintiff. At the hearing of this matter on 17 November 2015 1 dismissed the application without giving reasons. I now do so.

[2] The plaintiff had sued the defendant for an amount of R880 361-67 based on acknowledgement of debt signed by the defendant on 10 December 2012. Subsequent to the issue of the summons two payments were made in the reduction of the defendant's indebtedness to the plaintiff. The first payment was  in the amount  of R150 000-00.  This payment was pleaded in the plea as follows:

“9.

AD PARAGRAPH 7.3 THERETO

Except to state that the amount currently due amount to R730 361-67 (Seven Hundred and Thirty Thousand, Three Hundred and Sixty One Rand) since the Defendant has in the meantime made an interim payment of R150 000-00 (One Hundred and Fifty Thousand Rand), as more fully set in Annexure "KA1" the rest of the contents of this paragraph are noted".

[3] An admission is clearly made that the defendant is indebted to the plaintiff in the sum of R880 361-67 and that after having deducted R150 000-00 the balance of the amount still due is R730 361-17. A further amount of R60 000-00 was made and thus bringing the balance outstanding to R670 361-17. This was conceded by the plaintiff in the answering affidavit to the founding affidavit filed by the defendant in the present application for amendment.  In the answering affidavit it is stated:

“13.2 I respectfully refer the Honourable Court to Annexure "K" hereto, which is a statement dated July 2014. The amounts in question are set out as follows:

AMOUNT OWING    10107113      (Acknowledgement of Debt) R880 361-67

LESS PAYMENT     01107113      (Annexure "A3')                     R100 000-00

Subtotal:                                                                                     R730 361-67

LESS PAYMENT END 2014                                                       R60 000-00

FINAL TOTAL:                                                                            R670 361-67

13.3 In its proposed amendment the Applicant states that "{t]the Defendant specifically pleads further to the aforesaid, that the Defendant made payment in the amount of R150 000". The Defendant clearly does not deny liability in respect of the work performed, but wished to dispute the amount payable. The Respondent does not deny that Rt 50 000-00 was paid, but submits that such payment should be substituted form the original acknowledged amount of RBBO 36t-67 with a further deduction of R60 000.00 leaving an outstanding balance of R670 361-67".

[4] This in my view, settles everything the defendant wants to plead in the proposed amended plea. It does not constitute a defence to want to go on trial on the balance of the outstanding amount which is not in dispute. To do so would be waste of time and an abuse. There is no need to amend as what is sought to be amended is no longer in dispute.

[5] Counsel for the defendant referred this court to what is averred in paragraph 2.2 of the proposed amendment to the plea. It is stated:

"2.2 The plaintiff sent its final statement dated January 20t t which reflects an amount of R627 99-t 3 outstanding.  The final statement is attached hereto Annexure "A1".

[6] It was  not clear to me what counsel for defendant wanted to suggest is the essence of what is quoted above. Insofar as it was intended to suggest that the amount as per the acknowledgement of debt is not correct, that should be looked at in context. The plaintiff did building construction for the defendant. The final amount as pleaded in paragraph 7.1 of the particulars of claim was R893 913-57 as on 26 October 2010. However, on 10 December 2012 acknowledgement of debt in the amount of R880 361- 67 was signed. It is assumed that recalculation was made before signing thereof. Therefore to suggest that the latter amount is not correct seen in the light of the outstanding amount reflected in a statement during January 2011, in my view does not constitute a bona fide defence.

[7] These are reasons and consequently the dismissal of the application for the amendment of the defendant's plea with costs is hereby repeated.

 

__________________________

MF LEGODI

JUDGE OF THE HIGH COURT

 

ATTORNEYS  FOR THE APPLICANT/DEFENDANT

EHLERS FAKUDE INC.

3AGround Floor, Sanwood Park

379 Queens Crescent

Lynnwood, PRETORIA

TEL:  012 361 7102

REF: Mr E Z Fakude/Roelene/K1064

 

ATTORNEYS  FOR THE RESPONDENT/PLAINTIFF

RAUTENBACH-MATIHEWS &  FABRICIUS

Stone House,

510 Makou Street

Monument Park X2

PRETORIA

TEL: 012 482 6767

REF:  R Fabricius/TGB0001

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