Randa v Radopile Projects CC

• Jurisdiction: South Africa
• Judgment Date: 30 August 2012
• Citation: 2012 (6) SA 128 (GSJ)

Randa v Radopile Projects CC
2012 (6) SA 128 (GSJ)

2012 (6) SA p128

Citation	2012 (6) SA 128 (GSJ)
Case No	A 3003/2011
Court	South Gauteng High Court, Johannesburg
Judge	Willis J and Bava AJ
Heard	August 2, 2012
Judgment	August 30, 2012
Counsel	K Ioulianou for the appellant.; I Strydom for the respondent.

Flynote : Sleutelwoorde E

Practice — Pleadings — Amendment — During trial — Court's discretion — Tendency of courts to grant amendment to facilitate proper ventilation of disputes — Allowed where application not mala fide and where prejudice to F other party compensated by costs or postponement — Semble: Granting of amendments where trial at advanced stage causing inconvenience to other party and court due to ensuing postponement and calling or recalling of witnesses — Desirable to conclude litigation to restore creditor's cash flow, or to free defendant from litigation.

Headnote : Kopnota

G A magistrate had disallowed an amendment to the defendant's plea during the course of a trial. In an appeal against this refusal the appellant submitted that an application for amendment ought to be allowed, unless it is made mala fide or would cause prejudice to the other party, which could not be compensated for by an order for costs, or by some other suitable order such H as a postponement.

The court (per Bava AJ) noted the modern tendency of the courts was to grant an amendment where such amendment facilitated the proper ventilation of the disputes. (Paragraph [33] at 140G – H.)

However, the court found that the magistrate had, after a consideration of a combination of facts and circumstances, correctly refused to allow the I amendment. (Paragraphs [42] and [43] at 142H – J.)

Semble (per Willis J): Where matters were well advanced in a trial action, the amendment, if granted, would necessitate the recalling of witnesses and may also necessitate the need to subpoena witnesses whom it was not previously intended to call by the other party. A postponement would result in a part-heard trial, bringing about massive inconvenience not only to the J other side but also their witnesses and the court. Even with a costs order

2012 (6) SA p129

against the party seeking the amendment, it was far from certain that the A other side would succeed in fully recovering costs upon taxation. If a debtor owed money, it was only right that the creditor was paid sooner rather than later. Interest a tempore morae did not relieve cash flow. Conversely, if a plaintiff's case was without merit, it mattered greatly for the defendant to be discharged from liability sooner, rather than to have the millstone of litigation around the neck. (Paragraph [16] at 135E – 136D.) B

Cases Considered

Annotations:

Case law

Southern Africa C

Bankorp Ltd v Anderson-Morshead 1997 (1) SA 251 (W): dictum at 253E – F considered

Benjamin v Sobac South African Building and Construction (Pty) Ltd 1989 (4) SA 940 (C): referred to

Bitcon v City Council of Johannesburg and Arenow Behrman & Co 1931 WLD 273: referred to D

Callaghan v Callaghan (1882) 2 EDC 251: referred to

Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A): referred to

Cecil v Champions Ltd 1933 OPD 27: referred to E

Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en 'n Ander 2002 (2) SA 447 (SCA) ([2002] 2 All SA 525): referred to

Clayton v Feitelberg 1903 TH 99: referred to

Coetzee v Steyn 1955 (3) SA 48 (O): referred to

Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (Tk): dictum at 77F – I applied

De Lange v Herman & Co 1930 EDL 137: referred to F

De Wet v Bouwer 1918 CPD 433: referred to

Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) 1994 (2) SA 363 (C): referred to

Embling and Another v Two Oceans Aquarium CC 2000 (3) SA 691 (C) ([2000] 2 All SA 335): referred to

Euroshipping Corporation of Monrovia v Minister of Agriculture and Others 1979 (2) SA 1072 (C): referred to G

Ex parte Neethling and Others 1951 (4) SA 331 (A): referred to

Fellner v Minister of the Interior 1954 (4) SA 523 (A): referred to

Ferreira Deep Ltd v Olver 1903 TS 145: referred to

Fish Hoek Village Management Board v Romain 1932 CPD 304: referred to

Florence Soap and Chemical Works (Pty) Ltd v Ozen Wholesalers (Pty) Ltd 1954 (3) SA 945 (T): dictum at 948A – D considered H

Four Tower Investments (Pty) Ltd v André's Motors 2005 (3) SA 39 (N): dictum in paras [15] and [19] considered

Geldenhuis v Wilson 1949 (4) SA 534 (T): referred to

GMF Kontrakteurs (Edms) Bpk and Another v Pretoria City Council 1978 (2) SA 219 (T): referred to

Harris and Others v Minister of the Interior and Another 1952 (2) SA 428 (A): referred to I

Heeriah and Others v Ramkissoon 1955 (3) SA 219 (N): referred to

Krogman v Van Reenen 1926 OPD 191: dictum at 194 – 195 applied

Lawson & Kirk v SA Discount Acceptance Corporation (Pty) Ltd 1937 CPD 451 (1937 (2) PH F129 (C)): referred to

Levy v Rose (1903) 20 SC 189: referred to J

2012 (6) SA p130

Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd 2001 (4) SA 211 (W) ([2001] 2 All SA 506): dictum in para [10] considered A

Mabaso and Another v Minister of Police and Another 1980 (4) SA 319 (W): referred to

Macduff & Co (in Liquidation) v Johannesburg Consolidated Investment Company Ltd 1923 TPD 309: referred to

Meyerson v Health Beverages (Pty) Ltd 1989 (4) SA 667 (C): referred to B

Minister of the Interior v Cowley NO 1955 (1) SA 307 (N): referred to

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): referred to

Norton v Crooks 1914 EDL 532: referred to

O'Sullivan v Heads Model Agency CC 1995 (4) SA 253 (W): referred to C

Pavie v St Croix 1903 TH 106: referred to

Perlman v Zoutendijk 1934 (1) PH F68 (C): referred to

Rishton v Rishton 1912 TPD 718: referred to

Robinson v Randfontein Estates GM Co Ltd 1925 AD 173: considered

Rosenberg v Bitcom 1935 WLD 115: dictum at 117 in fin considered

Rustenburg Platinum Mines Ltd v Industrial Maintenance Plumbing Services CC [2009] 1 All SA 275 (SCA): considered D

S v Kearney 1964 (2) SA 495 (A): referred to

S v Kgafela 2003 (5) SA 339 (SCA) (2003 (2) SACR 176): referred to

SA Steel Equipment Co (Pty) Ltd and Others v Lurelk (Pty) Ltd 1951 (4) SA 167 (T): referred to

Simmons NO v Gilbert Hamer & Co Ltd 1963 (1) SA 897 (N): referred to E

Smith v Williams; Smith v Kok 1952 (2) SA 682 (W): referred to

Thomas v Thomas 1914 CPD 310: referred to

Trade Fairs and Promotions (Pty) Ltd v Thomson and Another 1984 (4) SA 177 (W): referred to

Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Limited and Another F 1967 (3) SA 632 (D): dictum at 638A – B considered

Trustees of Pentz v Van Druten (1886) HCG 81: referred to

Union Bank of South Africa Ltd v Woolf; Union Bank of South Africa Ltd v Shipper 1939 WLD 222: referred to

Van Gend & Son's and Van Gend Brothers' Trustee v GAG van Gend & HJ van Gend 1913 EDL 114: referred to G

Vilakazi v Santam Assuransie Maatskappy Bpk 1974 (1) SA 23 (A): referred to

Vorster v Van der Walt; Van Eetveldt v Vorster 1914 EDL 303: referred to

Wehmeyer v Williams Hunt & Brook Ltd 1940 CPD 511: referred to

Whittaker v Roos & Bateman 1911 TPD 1092: referred to

Winshaw v Gie Bros 1920 CPD 662: referred to H

Zarug v Parvathie NO 1962 (3) SA 872 (D): referred to.

England

Cassell & Co Ltd v Broome [1972] AC 1027 (HL) ([1972] 1 All ER 801): I referred to.

Case Information

An appeal against a decision disallowing an amendment to the defendant's plea during the course of a trial.

K Ioulianou for the appellant.

I Strydom for the respondent. J

2012 (6) SA p131

Cur adv vult. A

Postea (August 30).

Judgment

Willis J: B

[1] This is an appeal against the decision of the learned magistrate to disallow an amendment to the defendant's plea during the course of a trial. I am indebted to Bava AJ for preparing this judgment. Ordinarily, as the senior judge hearing this appeal, I should have taken the responsibility to prepare the first judgment. This case is concerned with an important feature of our adjectival law. C

[2] The issue in question arises frequently in our courts. In the light of the fact that my disallowing an amendment during the course of a trial was reversed in the Supreme Court of Appeal in the case of Rustenburg Platinum Mines Ltd v Industrial Maintenance Plumbing Services CC, [1] I considered it proper that I should invite Bava AJ to commit his D conclusions to writing first. Bava AJ graciously acceded to this request. He has also conveniently summarised the relevant facts. I am much indebted to Bava AJ.

[3] During the course of hearing the appeal, I became increasingly E concerned that, despite my inner conviction that the learned magistrate had correctly dismissed the defendant's application to amend his plea and counterclaim, the weight of precedent and prevailing practice would compel the upholding of the appeal. Following the British system, South African judges operate under a system of precedent. [2] In the case of Cassell & Co Ltd v Broome [3] the House of Lords made it clear that courts F lower in the judicial hierarchy may disagree with decisions of those that are higher and may even say so, but they are bound to follow the decisions in higher courts. This decision has been approved by our Supreme Court of Appeal in the case of S v Kgafela. [4]

[4] It has long been my conviction that the commencement of a trial is G the fulcrum upon which the courts' stance in respect of applications for amendments to pleadings should be balanced. The further away the parties are from the commencement of the trial, the easier it should be

2012 (6) SA p132

Willis J

A for a litigant to obtain an amendment...