Greyling v Nieuwoudt

• Jurisdiction: South Africa
• Judge: De Beer JP
• Judgment Date: 02 November 1950
• Court: Orange Free State Provincial Division

Greyling v Nieuwoudt
1951 (1) SA 88 (O)

1951 (1) SA p88

Citation	1951 (1) SA 88 (O)
Court	Orange Free State Provincial Division
Judge	De Beer JP
Heard	October 17-18, 1950; October 19, 1950
Judgment	November 2, 1950

Flynote : Sleutelwoorde E

Practice — Pleadings — Amendment to — When granted.

Headnote : Kopnota

As the original promissory note signed by the defendant as surety and co-principal debtor was lost, the plaintiff requested the defendant to F sign the duplicate note which the maker had given him. Defendant refused to sign this note: it was thereafter presented for payment and was dishonoured. Plaintiff then instituted proceedings to recover the amount of the note, tendering to indemnify the defendant. After discovery orders had been granted and discovery affidavits had been filed, the matter was set down for trial. Some eleven days before the G trial the lost note was rediscovered. At the trial plaintiff applied to amend the summons and declaration as it appeared that many of the particulars attaching to the lost note were incorrectly stated, e.g. the date of the note, name of payee, due date, amount, place of payment and rate of interest. Defendant opposed the amendment and contended that the Court should grant absolution and leave plaintiff to take such steps as he might deem advisable, and that the effect of the amendment was to introduce a new cause of action.

Held, that if the Court acceded to the defendant's contention the effect H would be that plaintiff would again bring before the same Court the same parties on the same issue. Accordingly the Court should not penalise the plaintiff by having to start an action de novo and would come to his assistance and allow the amendment.

Case Information

Application to amend a summons and declaration. The facts appear from the reasons for judgment.

S. Miller, K.C., for the plaintiff: The amendment should be

1951 (1) SA p89

allowed in the absence of mala fides; see Jones and Buckle, The Civil Practice of the Magistrates' Courts of South Africa (5th ed., p. 205), Nathan and Bowker (pp. 62 - 3), Middleton v Carr, 1949 (2) SA 374, Krause v S.A.R. & H., 1948 (3) SA 1145, Jackson v Isakow, 1946 AD 684. The Court should not stifle an attempt by a party to bring to its A notice facts on which he seeks to rely. See Middeldorf v Zipper, N.O., 1947 (1) SA 545, Frenkel, Wise & Co., Ltd v Cuthbert, 1947 (4) SA 715, Loesch v Crowther, 1947 (2) SA at p. 962, Standard Bank of S.A., Ltd v Fourie, 1924 OPD 40. The refusal of the amendment sought would result in a new action being brought. There should not be B multiplicity of actions; see Tongo v Mission Press, 1926 NPD 324.

J. N. C. de Villiers, K.C., for the defendant: The summons and declaration as originally drawn could not succeed as they were based on a particular promissory note which defendant had signed as surety and C which was lost; cf. secs. 67 and 68, Ord. 28 of 1902, Emmett & Cowen, The Law of Negotiable Instruments in South Africa (2nd ed., pp. 131, 136 - 7, 27), Maasdorp v Graaff-Reinet Board of Executors, 3 B.A.C. 482, National Acceptance Co. (Pty.) Ltd v Robertson and Robertson, 1938 CPD 175; and the plea is a denial that this D particular note was ever signed or that defendent was liable thereon. It is clear thus that on the pleadings as they stand, plaintiff must be met with absolution, at least at the close of his case. Plaintiff is not entitled to amend his pleadings so as to bring them into line with the new position, as this would base the pleadings on a totally new cause E of action; the Court will not encourage this type of amendment; see Coughlan v Estate Hiney and Others, 9 P.H. F. 94, Klee v Terblanche, 10 P.H. L. 2, Atlas v Miller, 1927 CPD 355, Cecil v Champions, Ltd., 1933 OPD 27, Van Aswegen and Another v Fechter, 1939 OPD at F p. 88, Jackson v Isakow (supra), Krause v S.A.R. & H. (supra), Moolman v Estate Moolman and Another, 1927 CPD 27, Fish Hoek Village Management Board v Romain, 1932 CPD 304, Frenkel, Wise & Co., Ltd v Cuthbert (supra), Tongo v Mission Press, 1926 NPD at p. 324, Standard Bank of S.A., Ltd v Fourie, 1924 OPD 40. Further, the G declaration contains allegations which are liable to be struck out as being unnecessary; cf. Rule 35, Nathan & Bowker (p. 59). Also, the declaration is vague and embarrassing in view of the particulars which have not been amended; see Stuttaford & Co., Ltd v Scher, 1931 CPD at pp. 342 - 3, Tibrook v Higgins, 1932 W.L.D. 147 at p. 151, Singh v. H Varkel, 1946 (1) P.H. F. 37, Loesch v Crowther (supra). As to the remainder of the declaration, the action could be brought in the magistrate's court; cf. Faustmann v Mamositla, 1945 OPD 283, sec. 29 (1) (d) of Act 32 of 1944. No amendment is granted as of right. The Court will order the matter to be brought in the magistrate's court; cf. Walker v Taylor, 1934 W.L.D. 102. If an amendment is allowed, defendant is entitled to time within which to plead and plaintiff must pay the wasted costs; see Waja

1951 (1) SA p90

v. Orr, 1931 T.P.D. 149, Rule 36, Estate Norton v Smerling, 1936 OPD 44, Standard Bank of S.A., Ltd v Fourie (supra).

Miller, K.C., in reply.

Cur adv vult.

Postea (November 2nd). A

Judgment

De Beer, J.P.:

Plaintiff, a garage proprietor...