Rand Staple-Machine Leasing (Pty) Ltd v ICI (SA) Ltd

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: Viljoen J
• Judgment Date: 12 April 1977
• Citation: 1977 (3) SA 199 (W)
• Hearing Date: 25 March 1977

Viljoen, J.:

On 13 August 1970 the plaintiff instituted an action H against the defendant claiming payment of the sum of R8 040, interest thereon and costs. In the plaintiff's declaration it is alleged that in or about September 1969 and at Johannesburg the plaintiff and the defendant entered into a verbal agreement of lease in terms of which the plaintiff was to lease to the defendant 100 stapling machines at a rental of R8 per month payable quarterly in advance; that in pursuance of the verbal agreement of lease plaintiff tendered to deliver 100 stapling machines, forming the subject matter of the lease, to the defendant which wrongfully and unlawfully

Viljoen J

refused such tender. The allegation in para. 5 of the declaration reads as follows:

"5.

The defendant, at the date of issue of summons, was in A arrear with its rentals in terms of the said agreement of lease in an amount of R8 040, which amount is due and payable."

On 24 November 1976 the plaintiff served on the defendant and filed a notice of amendment in terms of Rule 28 that the plaintiff intends to amend its pleadings as follows:

"1.

By deleting para. 5 of the plaintiff's declaration and B substituting the following therefor:

'During the currency of the said agreement of lease which was for a period of three years, the defendant failed to make any payments to the plaintiff in respect of rentals in terms of the said lease, and in the premises the defendant is indebted to the plaintiff in the sum of R28 800, being in respect of C the 100 stapling machines at R8 per month each for three years. The said sum is due and payable'.

2.

By deleting the sum of R8 040 wherever it appears in the pleadings and substituting therefor the sum of R28 800".

The notice concludes:

"Unless objection is made to the proposed amendments in D writing within 14 days, the plaintiff will amend its pleadings accordingly".

The defendant did, in terms of a notice dated 10 December 1976, object to the proposed amendment as follows:

"Be pleased to take notice that the defendant objects to the proposed amendment on the grounds that the claims for E rental in excess of R8 040 are prescribed, as will more fully appear from para. 3 of the plaintiff's declaration read with para. 5 of the plaintiff's further particulars to the declaration".

Being obliged, because of the proposed objection, to apply for the amendment in terms of Rule 28 (4) of the Rules of Court, the plaintiff filed a notice of motion dated 28 February 1977 F that application would be made for an order:

"1.

In terms of Rule 28 (4) granting leave to amend the plaintiff's pleadings as follows:

(a)

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