Thekweni Properties (Pty) Ltd v Picardi Hotels Ltd (And Others as Third Parties)

• Jurisdiction: South Africa
• Judge: Levinsohn DJP
• Judgment Date: 20 September 2007
• Citation: 2008 (2) SA 156 (D)
• Docket Number: 5516/2000
• Counsel: CG Marnewick SC for the plaintiff DA Gordon SC (with RDE Gordon) for the defendant No appearance for the third parties
• Court: Durban and Coast Local Division

Levinsohn DJP:

[1] On 28 June 2000 the plaintiff instituted an action claiming an amount of R845 726,98 in respect of arrear rentals owing D to it by the defendant. This is alleged to arise from an agreement of lease.

[2] The defendant delivered its plea on 17 May 2000. At the same time it joined two third parties claiming that these are obliged to indemnify it if the court found that the defendant was E obliged to pay the rentals claimed.

[3] In due course the respective third parties delivered their pleas and upon the plaintiff filing a replication in 2001 the pleadings closed. The respective third parties have now fallen completely out of the picture and it is agreed that nothing more need be said about them F in this litigation.

[4] According to the court file the trial was set down for hearing on 29 January 2007. A letter written by Docex on 1 July 2004 explains why there was a delay in the matter coming to trial. It appears that Docex, acting as agents of the plaintiff's attorneys, had omitted to file with the registrar a notice setting the matter down G on the trial register. In the result the trial action was only set down for the first time on 29 January 2007. On that date it was adjourned by consent to a date to be arranged.

[5] The next event of significance occurred in June 2007 when the defendant delivered a special plea to the plaintiff's particulars of claim. In essence the defendant alleged that the H plaintiff did not possess the necessary locus standi to sue for rentals since it had ceded its right, title and interest in and to these rentals when in 1996 it executed a mortgage in favour of Investec Bank Ltd. The decision in this trial ultimately hinges on the proper interpretation of the relevant clause of the mortgage bond concerned and I will presently turn to deal with it in more detail. I

[6] The plaintiff objected to the introduction of the special plea and the defendant was obliged to apply to amend its plea. That application was opposed and it came before me on 3 September 2007.

[7] In support of the application the defendant's attorney testified that he J

Levinsohn DJP

caused investigations to be made in regard to the mortgage bond in A question during May 2007. Upon perusing a copy of the bond he noted that in terms thereof the plaintiff had ceded its rights to Investec Bank Ltd. He thereupon caused a subpoena duces tecum to be issued calling upon Investec to produce the bond documents at the trial. Investec agreed to furnish the defendant with the documents which were received on 8 June 2007. Counsel B were then instructed to draft a special plea.

[8] In opposition to the application to amend, the plaintiff's attorney took the point that the proposed amendment was excipiable and, in any event, even if it could be said that a cession had taken place, the plaintiff would be irreparably prejudiced inasmuch as, if the amendment had been made at an earlier stage, the plaintiff would have C been able to obtain a re-cession of rights from Investec. At the present time it is too late to do so, as the claim has now become prescribed.

[9] The court has a wide discretion to grant amendments. In one of the leading cases on the point Trans-Drakensberg Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D) the principle is set forth as follows D (I quote the headnote):

The aim in allowing amendments to pleadings should be to do justice between the parties by deciding the real issues between them. The mistake or neglect of one of them in the process of placing the issues on record is not to stand in the way of this:

his punishment is in his being mulcted in the wasted costs. The amendment will be refused only E if to allow it would cause prejudice to the other party not remediable by an order for costs and, where appropriate, a postponement. It is only in this relation that the applicant for an amendment is required to show it is bona fide and to explain any delay there may have been in making the application, for he must show that his opponent F will not suffer prejudice.

If a litigant has delayed in bringing forward his amendment, this in itself, there being no prejudice to his opponent not remediable in the manner indicated above, is no ground for refusing the amendment.

The authorities on when the Court should grant or refuse an amendment reviewed. G

[10] Mr Marnewick on behalf of the plaintiff did not with any enthusiasm pursue the issue of the excipiability of the proposed amendment. In my view, his attitude to that aspect is clearly correct. At the level of pleading, the allegations made are certainly reasonably open to the construction contended for by the defendant. H The principle has been put as follows: the onus rests on the excipient who alleges that the amended pleading does not disclose a defence; he or she must establish that in all its possible meanings no defence is disclosed. (See Amalgamated Footwear & Leather Industries v Jordan & Co Ltd 1948 (2) SA 891 (C); Erasmus Superior Court Practice at B1-152.) I

[11] That has not been shown in this case. In the result there is no merit in the excipiability argument.

[12] Finally, I turn to the point in regard to irreparable prejudice. For the purposes of assessing the merits or demerits of this submission, I must J

Levinsohn DJP

assume in favour of the plaintiff that the cession in question effectively divested it of its locus standi to sue the A defendant. The concept of prejudice in this context implies that the grant of the amendment will cause the...