Botha and Others v Premier for Eastern Cape Province and Others

• Jurisdiction: South Africa
• Judge: Maya J
• Judgment Date: 03 April 2003
• Docket Number: 547/99; 331/99; 691/99; 666/99; 553/99; 620/99; 356/99; 281/99; 587/99; 233/99; 228/99; 329/99; 165/99; 322/99; 129/99; 128/99; 301/99; 272/99; 323/99; 162/99; 661/99; 321/99; 599/99; 185/99; 212/99; 341/99; 365/99; 265/99; 787/99; 244/99; 604/99; 595/99; 348/99; 305/99; 359/99; 689/99; 152/99; 389/99; 686/99; 275/99; 274/99; 639/99; 564/99; 231/99; 206/99; 309/99; 361/99; 577/99; 643/99; 648/99; 304/99; 333/99; 156/99; 153/99; 214/99; 234/99; 334/99; 582/99; 229/99; 174/99; 557/99; 216/99; 674/99; 136/99; 633/99; 258/99; 287/99; 133/99; 547/99
• Court: Transkei High Court
• Hearing Date: 03 April 2003
• Citation: 2003 JDR 0207 (TkH)

Maya J:

The Plaintiffs seek leave to amend their combined summonses in the manner set out in notices issued in terms of Rule 28(1) of the Uniform Rules of Court. The Defendants oppose the application and have set out the grounds of their objection to the proposed amendments in a notice made in terms of Rule 28(3). One of such objections relating to substitution of parties was however abandoned at the hearing of the matter. Although only Case No.594/99, the main case, was argued the parties agreed that a judgment therein will dispose of all the other 68 matters cited hereinabove.

The Plaintiffs propose to amend their summons by a "substitution of the documents titled amended particulars of claim to be delivered herein ... for the existing particulars of claim".

A number of Rules 30 and 23 applications had been launched at various stages of the matter and at the conclusion thereof all that was left of the combined summonses were the forms 10 proper. Thus the so-called amended particulars of claim in their entirety are the proposed amendments.

It is more convenient in the light of the format adopted by the Plaintiffs to deal with the amendments sought to be effected by addressing the objections raised thereto. I should also mention that almost all these objections have been raised in other related matters which were argued simultaneously with this one in respect of which I have already handed down judgments. Most of my findings in this matter will therefore be a repetition of what has been stated in those judgments.

2003 JDR 0207 p3

Maya J

The first objection raised by the Defendants relates to the rather unusual format (alluded to hereinabove) used by the Applicants in framing the proposed amendments which they describe as an improper substitution of the particulars of claim. It had also been argued that in the light of the fact that the remaining summonses were empty husks the proper step for the Plaintiffs would be to start afresh and issue new combined summonses.

I will first deal with the latter submission which is not in my view a correct statement of the legal position. For example, in the decided case of Santam Insurance Co. Ltd v Manqele 1975 (1) SA 607 (D & CLD), where an exception to a combined summons had been upheld and the entire particulars of claim struck out the court made the following comments at 609B:

"In my opinion the effect of the judgment upon exception was that the respondent was not obliged to commence his action de novo; the summons as such remained as a summons commencing action. However the court struck out the particulars of claim set out in it and the respondent was granted leave to file amended particulars within 14 days. It is clear that the particulars of claim in a combined summons must be regarded as a pleading..."

In Princeps (Edms) Bpk en 'n Ander v van Heerden NO en Andere 1991 (3) SA 842 at 845 H-I, it was held that the fact that the particulars of claim were not valid for failing to set out a cause of action did not make the summons a nullity; the Defendant was still before court and if the exception was upheld the court thereby brought an end to the cause of action but not to the pleading because if

2003 JDR 0207 p4

Maya J

this was not the case the upholding of an exception would be tantamount to an order of absolution from the instance or judgment for the Defendant, which is not the case. I agree with these views wholeheartedly. The Applicants do not have to start from scratch and are fully entitled to approach this court in terms of Rule 28.

Regarding the objection itself it was argued that the Plaintiffs impermissibly seek to effect a complete substitution and not an amendment as envisaged by Rule 28 as, for example:

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the parties now cited are different, with the Transkei Agricultural Corporation Limited (in liquidation) (hereinafter Tracor in Liquidation) substituted for the third Defendant, Tracor and the joint liquidators cited for no ostensible purpose;

•

substantive relief is now sought against Tracor which was initially merely cited as "an interested party";

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the basis of the Plaintiffs' claims was initially the wrongful dissolution of Tracor by the first Defendant whereas in the amended particulars both the first and third Defendants are sued in delict and in contract for loss of dignity and salaries, respectively with anew additional claim for the maturity value of certain insurance policies.

2003 JDR 0207 p5

Maya J

It becomes necessary to point out at this stage that the approach generally followed by our courts is to allow an amendment unless to do so would cause the other party such prejudice as cannot be cured by an order of costs or a postponement. See Myers v Abramson 1951 (3) SA 483 (C) at 451 B-D. In one of the benchmark cases in applications for amendment, Moolman v Estate Moolman 1927 CPD 27, the court said at 29:

"[T]he 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 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."

A court may therefore permit, in appropriate circumstances, for example, a summons to be amended by the addition or substitution of a new party. See Trustees African Explosive Pension Fund v New Hotel Properties Ltd, Trustees African Explosive Fund v Nestel 1961 (3) SA 245 (W). It may even allow an amendment which introduces anew cause of action where necessary even if such has an effect of changing the character of the action where that is necessary to ventilate and decide the real dispute between the parties. See Myers v Abramson (supra) at 449D – 450A; Trans-Drakensberg Bank Ltd v Combined Engineering (Pty) Ltd & Another 1967 (3) SA 632 (D & CLD) at 643 A-C.

It is instructive to also have due regard to the essence and purport of the governing provisions of Rule 28. Subsection (1) thereof provides that "[a]ny party desiring

2003 JDR 0207 p6

Maya J

to amend any pleadings or document other than a sworn statement, illed in connection with any proceedings, shall notify all other parties of his intention to amend and shall furnish particulars of the amendment". Subsections (5), (6) and (7) make provision for the stage at which a party seeking to amend its pleadings may effect such amendments. The...