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NOT REPORTABLE

IN THE SOUTH GAUTENG HIGH COURT

(JOHANNESBURG)

CASE NO 3030/2010

DATE:07/06/2012

In the matter between

SA SECURITISATION PROGRAM (PTY) LTD............................................PLAINTIFF

and

ENVIROSERV WASTE MANAGEMENT (PTY) LTD..................................DEFENDANT

Practice – rule 28 - amendment of pleadings - application for in terms of rule 28(4) - requirements - amendment refused where it would render the particulars of claim excipiable.

J U D G M E N T

VAN OOSTEN J:

[1] This is an opposed application for the amendment of the plaintiff’s particulars of claim. It is the plaintiff’s second attempt to properly plead its case. In response to the first amendment of the plaintiff’s particulars of claim the defendant delivered a notice of exception thereto, in terms of rule 23(1). In response thereto the plaintiff once again served a notice of amendment which is the subject matter of this application. Paragraph 1 of the proposed amendment concerns the correct citation of the plaintiff and has not been objected to.

[2] The plaintiff claims as cessionary in regard to two lease agreements, pursuant to a series of cession agreements. The plaintiff’s allegations in regards to the written cession agreements, in essence, are the subject of the defendant’s objections to the proposed amendment. The defendant contends that the amendment, if allowed, would render the particulars of claim excipiable to the extent that it is vague and embarrassing, and in the alternative that it lacks averments necessary to sustain a cause of action. The objection in essence concerns the absence of sufficient allegations to establish the plaintiff’s locus standi in the action.

[3] Two written master cession agreements, each styled “Main Lease Agreement” and containing identical terms, provide for, the first, a cession from Sapor Rentals (Pty) Ltd to Sunlyn Rentals (Pty) Ltd (annexure A1) and, the second, from Sunlyn to Sasfin Bank Ltd (A2). An oral alternatively tacit agreement of cession is alleged from Sasfin Bank to the plaintiff. The defendant’s objections are raised in regard to paragraphs 2 and 3 of the proposed amendment and only concern the written cession agreements.

[4] Certain formalities for the cession are provided for in the written cession agreements. Those are enumerated in express terms in clauses 1.1.11, 2.1, 3 and 4.2 of each cession agreement. In essence a separate contract of cession is required, as worded in clause 4.2 of each agreement, stipulating that “the cession of each contract shall be a separate and severable transaction upon the terms and conditions of this agreement”. As to the separate agreement required to effect a cession in terms of the master agreement, the plaintiff, by way of example in regard to the first agreement of lease, pleads as follows:

‘4.4 Sapor and Sunlyn duly performed according to all obligations and formalities in annexure “A1”.

4.5 Accordingly Sunlyn acquired all rights, title and interest held under annexure “A” (ie the lease agreement) from Sapor on 20 August 2008.”

The lack of particularity on the one hand and the reliance on conclusions without setting out the factual foundation therefore, are apparent. There are no allegations in the proposed amendment as to the steps that were taken or the formalities that had been complied with in order to effect the cession or sale to the plaintiff. These particulars are in fact essential to complete the plaintiff’s cause of action. In the absence thereof the plaintiff’s particulars of claim lack averments necessary in order to sustain a cause of action based on the alleged cession.

[5] The plaintiff by way of alternatives to A1 and A2, “and only in the event that it be found that (the written cession agreement) did not come into existence and is of no force or effect” pleads firstly, an oral and, secondly, a tacit agreement of cession on the terms contained in the written cession agreements. The reliance on the alternatives is odd in the face of the written agreements relied on. No valid grounds for the alternatives coming into being are alleged. The defendant is accordingly embarrassed in pleading to the alternatives.

[6] It is trite that an amendment that would render a pleading excipiable (Erasmus Superior Court Practice B1-183), as is the case here, should not be allowed.

[7] In the result I make the following order:

1. The amendment in paragraph 1 of the Notice of Amendment is allowed.

2. The application for an amendment in terms of paragraphs 2 and 3 of the Notice of Amendment is dismissed with costs.

_________________________

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR PLAINTIFF : ADV C COTHILL

PLAINTIFF’S ATTORNEYS: SMIT JONES & PRATT

COUNSEL FOR DEFENDANT: ADV AP BRUWER

DEFENDANT’S ATTORNEYS: DU PLESSIS DE HEUS & VAN WYK

DATE OF HEARING: 7 JUNE 2012

DATE OF JUDGMENT : 7 JUNE 2012

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