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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NUMBER: A466/17

DATE: 13 December 2019

 

K CARRIM COMMERCIAL PROPERTIES (PTY) LTD                       Appellant

 

V

 

FAIR DISCOUNTERS (PTY) LTD                                                              First Respondent

DAWOOD RASHID VALLY                                                                         Second Respondent

JUDGMENT

MABUSE J: (Teffo J & Engelbrecht AJ concurring)

[1]        This is an appeal by the Appellant, K Carrim Commercial Properties (Pty) Ltd, against the whole of the judgment and the order of Madam Justice Mokose delivered ex tempore on 28 April 2017 in which she dismissed, with costs, the Appellant's application in terms of Rule 28(4) of the Uniform Rules of Court. In the said application the Appellant had sought leave of the court to amend its name that it had alleged had been erroneously stated in the Particulars Of Claim ("the POC"). Leave to appeal was granted by the court a quo on 25 August 2017.

[2]       In the POC before the court a quo, the Appellant was described as a private company with limited liability with its principal place of business situated at 159 Boom Street, Pretoria. In the main case before the court a quo, the Appellant was cited as the Plaintiff.

[3]         

3.1       The First Respondent, both in the court a quo and the current appeal was, and still is, Fair Discounters (Pty} Ltd ("Fair Discounters"). In the POC the First Respondent is described as a private company with limited liability with its principal place of business situated at 1^st Floor, Fair Price Head Office, 95 Houthamer Street, Devland, Ext. 1, Johannesburg. Fair Discounters was the First Defendant in the main case before the court a quo.

3.2       The Second Respondent, Dawood Rashid Vally, an adult male employed by Fair Discounters at its principal place of business, will be referred to, for the purposes of brevity, as Mr Vally. In the main case in the court a quo Mr Vally was the Second Defendant. Fair Discounters and Mr Vally will jointly be referred to as the Respondents.

 

[4]        In this appeal the crucial issue that this Court was called upon to decide was whether, by delivering a notice of intention to amend its POC in terms of Rule 28(4) of the Uniform Rules of Court, the Appellant merely sought to correct a misdescription of its name or whether it sought to substitute its name for another party.

 

THE BACKGROUND

[5]        On 28 August 2017, the Appellant issued summons against Fair Discounters and Mr Vally as the First and Second Defendants respectively. In the said summons, the Appellant had claimed in paragraph 15 of its POC against the Respondents jointly and severally, the one paying and the other to be absolved:

"5.1   payment in the amount of R693,555.49;

5.2     interest on the aforementioned amount, calculated at a rate of 15.5% a tempore morae;

5.3     payment in the sum of R5,281,849.34 (five million, two hundred and eighty-one thousand, eight hundred and forty-nine rand and thirty-four cents);

5.4       interest on the aforementioned amount calculated at a rate of 15.5% from the date of service of the summons alternatively date of payment;

5.5      costs of the suit;

5.6     an order rectifying a written surety agreement marked as annexure “K1” by the substitution of the words "Mr Zaheed E Camm CEO of K Carrim Commercial Properties Ltd” with the words "K Carrim Commercial Properties (Pty) Ltd” where they appear on page 8 of the agreement. "

 

[6]       The Appellant's cause of action against Fair Discounters was an Agreement of Lease. The allegations made by the Appellant against Fair Discounters in the POC were that on or about 12 May 2012 and at or near Pretoria, Carrim Commercial Properties, the Plaintiff in the court a quo and now the Appellant, on one side and the First Defendant, Fair Discounters, on the other side, had entered into a written Lease Agreement in terms of which the Appellant and Fair Discounters had agreed that the Appellant would lease units 3, 4 and 5 of K Carrim Complex, situated at the corner of Welthagen and Taljaard Streets, Hermanstad, Pretoria, to Fair Discounters. It was alleged furthermore by the Appellant that at the conclusion of the said written Lease Agreement the Appellant was represented duly by a certain Zaheed Ebrahim Carrim ("Mr Carrim") whilst Fair Discounters was represented duly by Hafiz Loonal ("Mr Loonal"), alternatively Mr Vally, alternatively both Mr Loonal and Mr Vally.

6.1        The allegations regarding representations at the conclusion of the said written Agreement were clearly borne out by a copy of the written Agreement of Lease annexed to the POC and marked "K1". Furthermore, it was alleged that on or about 14 June 2012 the First Defendant repudiated the Lease Agreement by vacating the premises in circumstances that the Lease Agreement was in esse and no right existed or was required by Fair Discounters to have terminated the Lease Agreement;

6.2        Fair Discounters did not terminate the Lease Agreement validly, and the Appellant duly accepted the repudiation of the Lease Agreement by Fair Discounters, so it was further alleged.

 

[7]        There was a separate claim by the Appellant against Mr Vally in the POC. The allegations made by the Appellant in regard to that claim were that on or about 12 May 2011 and at or near Pretoria the Appellant, duly represented by Mr Carrim and Mr Vally, entered into a deed of suretyship which was contained in the Lease Agreement attached as "K1"; that in terms of such Agreement Mr Vally bound himself as surety and co-principal debtor to the Appellant for the due and proper fulfilment of all the obligations of Fair Discounters arising from or out of or in terms of the Lease Agreement between the Appellant and Fair Discounters dated 12 May 2011 or any renewal, amendments, breach or cancelation of the Lease; that in terms of the suretyship Mr Vally renounced the benefits of excussion, revision of accounts and cession of the action; and that the written suretyship agreement incorrectly contained and reflected the following:

7.1       that Mr Vally bound himself as surety to Mr Carrim (the Appellant's duly authorised representative at the time of the signing of the suretyship) for the due and proper performance of all of Fair Discounters' obligations towards the Appellant;

7.2        that Mr Carrim was the landlord while the Appellant was the landlord in terms of the Lease Agreement;

7.3        that the aforesaid incorrect contents of the suretyship agreement were occasioned by a common error of the parties and the parties signed the suretyship agreement in the bona fide but mistaken belief that it recorded the true agreement between the parties;

7.4        for that reason the Appellant demanded rectification of the contract so as to conform to the common intention of the parties and for the same reason Mr Vally was liable to the Appellant for the amount owed by Fair Discounters to the Appellant.

 

[8]       In their joint plea, the Respondents admitted that, as set out in POC, the Appellant was the Plaintiff. Furthermore, the Respondents admitted the material terms of the lease as pleaded including the allegation as set out that the Appellant was the lessor.

[9]       On 19 April 2016 the Appellant delivered its notice of intention to amend its POC as follows:

"1.    By deleting the words: "K Carrim Commercial Properties (Pty) Ltd" in the description of the Plaintiff in the heading to the summons and the particulars of claim and replacing JI with "K Carrim Property Management (Pty) ltd''.

2.       By deleting the words: "K Carrim Commercial Propetties (Pty) Ltd” in paragraph 1.1 of the Particulars of Claim and replacing it with the words "K Carrim Property Management (Pty) Ltd.”

3.       By deleting paragraph 1.2 of the Particulars of Claim. "

 

For purposes of convenience, the following allegations had been made in the POC:

"1.1  The Plaintiff is K Carrim Commercial Properties (Pty) Ltd, registration number 1998/004153/07, a private company with limited liability and with its principal place of business situate at 159 Boom Street, Pretoria.

1.2    The Plaintiff was formerly known as K Carrim Property Management (Pty) Ltd "

 

[10]     On 24 April 2016 the Respondents delivered to the Appellant their notice of intention to oppose the Appellant's contemplated amendment and notice of objection to the Appellant's proposed amendment dated 19 April 2016. The objections were premised on the following grounds that:

"10.1   The effect of the Appellant's proposed amendment to its summons and particulars of claim is to substitute one party with another.

10.2      The Appellant cannot by means of a notice of amendment seek to substitute one party with another, and is obliged in terms of the common law to bring a substantive application for substitution.

10.3     Notwithstanding the above, the Respondents objected to the proposed amendment on the basis that the claim of K Carrim Property Management (Pty) Ltd (the proposed new plaintiff) has been extinguished by prescription in terms of s 11 of the Prescription Act 68 of 1969 ('the Act").

10.4     the proposed new Plaintiff had two claims against the Defendants' being:

10.4.1            a claim for arrear rental based on the breach by the Fair Discounters of the Lease Agreement (annexure K1) to the Particulars of Claim for the period 1 January 2012 to 20 June 2012; and,

10.4.2            a claim for damages pursuant to the cancellation of the lease on 20 June 2012 (per letter attached to the proposed claim as "K2").

10.5      The debt in respect of both claims accordingly became due on or before 20 June 2012.

10.6      The institution of the present action by the service of the summons by the Appellant on the Respondents, did not interrupt the prescription of the debt owed by the Respondents to the proposed new Plaintiff in terms of s 14 of the Act

10.7      In terms of s 11(d) of the Act the debts arising from the above claims prescribed after a period of 3 years after the debt became due.

10.8     The debts purportedly owed by the Respondents to the proposed new Plaintiff for arrear rental and damages does prescribe on or before 19 June 2015."

 

[11]      Having received an objection from the Respondents to its contemplated amendment, the Appellant, in keeping with the provisions of Rule 28(4), launched an application for leave to amend, through the instrumentality of a founding affidavit deposed to by Carrim, an adult male businessman and managing director of both K Carrim Commercial Properties (Pty) Ltd and K Carrim Property Management (Pty) Ltd. In his founding affidavit the said Carrim made the following averments:

11.1    ''The sole objective of the Plaintiff's proposed amendment is to correct a bona fide and unintentional mistake that was made when the Particulars of Claim was drafted and which mistake did not come to the Plaintiff's attention until 13 or 14 April 2016.

11.2      The mistake that was made in the drafting of the Particulars of Claim consists of the incorrect allegations in paragraphs 1.1 and 1.2 thereof, namely that the Plaintiff was formally known as ''K Carrim Property Management (Pty) Ltd" but that it had changed ,is name to UK Camm Commercial Properties (Pty} Ltd''.

11.3      The statements in paragraph 1. 1 and 1.2 of the Particulars of Claim are incorrect as K Carrim Property Management (Pty) ltd never changed its name to "K Carrim Commercial Properties (Pty) ltd" or to any other name for that matter even before the Particulars of Claim was drafted or drawn.

11.4      I do not know for certain why the Plaintiff's legal representatives inserted the statements in paragraphs 1. 1 and 1.2 of the Particulars of Claim when same was drafted, however, I can only assume that someone in the Plaintiff's offices gave this incorrect information through the Plaintiff's attorneys at the time.

11.5      Furthermore, and despite having read the Particulars of Claim on several occasions, I never noticed the mistake. It was only on 13 or 14 April 2016, and after the Plaintiffs attorney informed me that both he and the employees of the Plaintiff were unable to locate documentation to support the alleged change of name, that I noticed for the first time the above incorrect statements that were included in the Particulars of Claim.

11.6      I inform the Plaintiff's attorneys that the Plaintiff's name was never changed as alleged and that the Plaintiff is, and has always been, known as K Carrim Property Management (Pty) Ltd

11.7      After having been made aware of the mistake in the Particulars of Claim, I immediately instructed the Plaintiff's attorneys to attend to the amendment of the Particulars of Claim which in turn resulted in the Plaintiffs proposed amendment being delivered on 19 April 2016."

 

[12]     With regard to the Respondents' grounds of objection to the contemplated amendment, Carrim stated the following:

"5.5     In paragraphs 1.1 and 1.2 of the Particulars of Claim the Plaintiff states that it is K Carrim Property Management (Ply) Ltd w1lh registration 1998/004153/07 but that it has since changed its name and is now (i.e. as at the date on which the claims instituted) known as K Carrim Commercial Properties (Pty) Ltd.

5.6       The registration number of the Plaintiff that it used in the Particulars of Claim (1998/004153/07) is the exact same number that appears in the definition of the "lessor" in the written lease Agreement that is submitted by the Defendants.

5.7        It is therefore the exact same Juristic person who concluded the lease Agreement that firstly demanded payment from the Defendants in terms of the Lease Agreement and thereafter issued by the summons against the Defendants. It is merely the name of the very same juristic entity that is corrected by way of the amendment. K Carrim Commercial Properties (Pty) Ltd, although an existing company with an entirely different registration number, never had, and still does not have any interest in the Plaintiff's claim against the Defendants.

5.8        The issue of prescription does not arise as the Plaintiff whose name is sought to be corrected is the exact same Plaintiff that initially caused the summons to be served on the Defendants. The Defendants are thus in exactly the same position as they were when the Particulars of Claim was initially served on them.

5.9        The Defendants can in no conceivable manner be prejudiced if the Plaintiff's proposed amendment to its Particulars of Claim is allowed. "

 

[13]     In their joint answering affidavit deposed to by Amod Shaffie Moosa ("Mr Moosa"), the Respondents persisted with their grounds of objection as set out in the notice of objection.

[14]      On 28 April 2017 the matter went to court and the Appellant's application for amendment was heard. Mokose J found that "it was clear from the papers before her that if the application for amendment was granted, the Respondents would be severely prejudiced as the claim against the Management (should be the management's claim referring to K Carrim Property Management (Pty) Ltd) had prescribed and both the claims for arrear rental for the period 1 January 2012 to 30 June 2015 and the claim for damages pursuant to the cancellation of the lease became due on or before 20 June 2012." It was for the aforegoing reasons, inter alia, that she dismissed, with costs, the Appellant's application to amend its summons.

[15]      The full grounds on which the Appellant appeals against the said judgment and the order of the court a quo have been fully set out in the application for Leave to Appeal. I do not therefore deem it necessary to regurgitate them or set them out singly in this judgment by reason of the fact that the said application for leave to appeal constitutes part of the appeal papers before the Court.

[16]      Adv JL Myburgh, counsel for the Appellant, argued that the finding by the court a quo that the purpose of the Appellant's Rule 28(4) application was to bring in or introduce a new party into the case was flawed. He argued furthermore that the identity of the original Plaintiff was not determined by reference to its name only. That principle was, according to him, given particular expression in Blaauberg Meat Wholesalers CC v Angelo Dutch Meats (Exports) Ltd 2004 (3) SA 160 (SCA) at paragraph 14 where the following was held in the context of an application for leave to amend:

"Of course the identity of the creator does not depend only on its name. Place of residence or business, registered office, occupation or nature of business, details of some or all of which one would expect to find in the process, they also serve to establish identity or clarify an ambiguous and incorrectly stated name. (There may be other indicators, such as previous name of a company, company registered details or an identity number, which are sometimes encountered). "

 

[17]     Mr Myburgh acknowledged that in Draft FCB South Africa Holdings (Pty) Ltd v Minister of Communications 2013 JDR 1302 GMP at [12], the learned Judge utilised the company's registration number as a factor in determining the identity of the original Plaintiff. The learned Judge held that:

"When a company changes its name, it does not cease to exist - it simply undergoes an identity change. This explains why the registration number does not change. There can be no doubt that both Draft FCB South Africa Holdings (Ply) Ltd and Interpublic South Africa Holdings (Pty) Ltd referred to one and the same company bearing registration number 1939/012593/01."

 

[18]     The paragraph from Blaauberg on which Mr Myburgh relied on must be seen and analysed in the light of what the Court stated in the preceding sentence. In that sentence the Court had stated the following:

"[14]    Applying these considerations to the facts of the case, the question which requires answering is: 'Was the summons served on the defendant before prescription in which the creditor who asked for judgment, viz Exports, claimed payment? That there was no exact compliance is beyond dispute, because the original Plaintiff was not the creditor and did not seek judgment. "

 

[19]     The fundamental issue in the Blaauberg case was set out in paragraph [1] thereof and that was whether an action mistakenly instituted in the name of A (for A read K Carrim Commercial Properties (Pty) Ltd) as creditor served do interrupt prescription where it appeared, after the prescribed period that B (for B read K Carrim Property Management (Pty) Ltd) was the true creditor, and the summons was duly amended. In paragraph [8] the Court in Blaauberg set out the approach that a court, faced with applications for amendment of pleadings on the one hand, and the determination of whether there is compliance with the statutory provisions, such as s 15(1) of the Prescription Act, on the other hand, should adopt. The Court dealt extensively with this approach in the said paragraph. In criticizing the approach adopted by the court a quo it sets out the following approach:

"There seems to be no consideration of whether a difference in approach is called for between applications for amendment of pleadings and the determination of whether there is compliance with a statutory provision such ass 15(1)."

 

[20]      What the Court meant by its approach was, when the Court is faced with these two choices in which one party applies for the amendment of the pleadings while the other party raises an objection, such as prescription against such an amendment, the Court should first determine whether the debt that is sought to be enforced has not been extinguished by prescription or to put it otherwise whether the party that seeks an amendment of its pleadings has first complied with any statutory prescripts. In other words, has satisfied the Court that the debt it seeks to enforce has not become prescribed and whether the new Plaintiff had taken any steps contemplated in s 15(1) of the Prescription Act. If the debt has become prescribed then the amendment may not be granted. The approach set out by Blaauberg places a burden on the Plaintiff to prove that its claim has not become prescribed if he or it wants to proceed with the application for the amendment of its pleadings.

[21]       In support of its approach the Court in Blaauberg found support in Associated Paint and Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit 2000 (2) SA 789 (SCA) "Where it was decided that where an action was instituted on behalf of company A and it was proposed, after the onset of prescription, to substitute the Plaintiff by company B, the amendment could not be granted as the claim of B had prescribed because B had not taken the steps contemplated by s 15(1) of the Prescription Act 68 of 1969 to claim payment within the prescriptive period "

See also Maharaj and Others v Rampersad 1964 (4) SA 638 (A) at 646 C-E where the Court had the following to say:

The enquiry, I suggest, is not so much whether there has been "exact" or "substantial compliance with this injunction but rather whether there has been compliance therewith. This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is, and what according to the requirement of the injunction it ought to be. It is quite conceivable that a Court might hold that, even though the position as it is not identical with that which it ought to be, the injunction has nevertheless been complied with. In deciding whether there has been compliance with the injunction the object sought to be achieved by the injunction and the questions of whether the object has been achieved are of importance. "

 

The Court in Blaauberg held that:

 

"The fact remains that summons served on the appellant fal1ed entirely to communicate to it the intention of exports, (read in this case management), to claim payment. The summons did not therefore. achieve the objects of s 15(1) and was therefore not effective to interrupt prescription. "

 

[22]     I now turn to the facts of this appeal. The application in terms of Rule 28(4) was brought by the Appellant to amend the citation of the Plaintiff to reflect the reality. According to Carrim, the error of citing the Appellant instead of K Carrim Property Management (Pty) ltd arose from the attorneys when they drew the Appellant's particulars of claim. It is not clear from the papers where the original error arose. lt is however as clear as crystal that in the court a quo the Plaintiff had been wrongly described as K Carrim Commercial Properties (Pty) Ltd instead of K Carrim Property Management (Pty) Ltd.

[23]     It was argued by counsel for the Appellant that the Appellant only sought leave to amend its particulars of claim in order to correct a bona fide typographical error and that it did not seek a substitution of the Plaintiff by another. This argument is, in my view, flawed. The Appellant asserts in the answering affidavit that K Carrim Commercial Properties (Pty) Ltd and K Carrim Property Management (Pty) Ltd are two distinct entities. That that is so is clear from paragraph 1.1 of the founding affidavit where Mr Carrim states as follows:

“I am an adult male businessman and managing director of both K Carrim Commercial Properties (Ply) ltd and K Carrim Property Management (Pty) Ltd. "

 

It is therefore clear that here he deals with two independent companies. That that is so is also clear from annexure "AA1" to the Respondent's answering affidavit. In paragraph 6 thereof Mr Amod Shaffie Moosa states as follows:

"The Applicant is K Carrim Commercial Properties (Pty) Ltd (Commercial Propeties) incorporated on 6 March 1996. A copy of the Company Report of this entity complied from data supplied by the Companies and Intellectual Property Commission (CIPC) is attached hereto as ':4.41 ''." According to M 1 K Carrim Commercial Properties (Pty) Ltd was incorporated under 1996/002858/07. With regard to the other company Mr Moosa had the following to say:

"The Company which the Applicant/Plaintiff wishes to substitute as the new Plaintiff is K Carrim Property Management (Pty) ltd ("Property Management”), incorporated on 5 March 1998. A copy of the Company Report of this entity compiled from data supplied by the Companies and Intellectual Property Commission ("CIPC") are attached hereto as "AA2''. " According to "M2" the K Carrim Property Management (Pty) Ltd was registered under 1998/04153/07. Quite clearly the Appellant asserts in the founding affidavit that the "Commercial" and "Management" are two distinct entities. Therefore, I agree with Adv RS Shepstone, counsel for the Respondent, that this does not constitute a case where the correct party has been incorrectly named and that the purpose of the purported amendment is to correct a mistake. This is a clear case, in my view, where it is sought to replace one company with another or one Plaintiff with another.

 

[24]      Mr Carrim stated in the founding affidavit that the Respondents' objection to the proposed amendment on the basis that such an amendment would result in a substitution of the Plaintiff for another person in circumstances where a claim by the new Plaintiff had already become prescribed, will only become distinguished by prescription was misplaced as the Appellant does not attempt to substitute the Plaintiff but instead attempts to correct a mistake that was made in the name of the very same Plaintiff, does not hold water. This is not true considering what appears in paragraph 1.1 and 1.4 of the founding affidavit.

[25]      In conclusion the Appellant issued summons for payment of R693,555.45 and other ancillary relief against Fair Discounters. In this regard the Appellant's claim was predicated on a lease, attached to the POC as "K1". Equally, in the same summons, the Appellant claimed from Mr Vally the same amount and in this regard the Appellant's claim was based on suretyship. Quite clearly the Appellant should not, for the following reasons, have issued any summons against the Defendant:

25.1      there was no Lease Agreement existing that the Appellant had concluded with Fair Discounters;

25.2     there was no creditor-debtor relationship between the Appellant and Fair Discounters;

25.3     if there was no creditor-debtor relationship between the Appellant and Fair Discounters, there could not have been any suretyship by Mr Vally for the fulfilment of the debts of Fair Discounters;

25.4      even if Mr Carrim claimed that he did not know where the confusion cropped up, it is clear that this was an issue that should have been cleared right at the beginning, for "K1" constituted a Lease Agreement between K Carrim Property Management (Pty) Ltd as the lessor and Fair Discounters as the lessee.

 

[26]      It is accordingly K Carrim Property Management (Pty) ltd that should have issued summons against the Respondents and claimed payment of the said amount from them. This is so because the Lease Agreement had established a creditor-debtor relationship between the Appellant and Fair Discounters respectively. The Lease Agreement would have created different rights and obligations for the lessor and the lessee. The lessee, Fair Discounters, would have been obliged to pay the rental at intervals agreed by the parties: and the duty to pay rental would have underpinned Mr Vally's suretyship in respect of the duties of Fair Discounters to pay rental.

[27]       This brings me now to the Appellant's application in terms of Rule 28(4). When the Appellant realised that it could not proceed with its action, against the Defendant in the court a quo, it brought the said application to have its name removed from the action and replaced with K Carrim Property Management (Pty) Ltd. There was a good reason for doing so as I have pointed out. As pointed out earlier in paragraph [23) supra, the Appellant's application in terms of Rule 28(4) was an attempt to amend the citation of the Plaintiff to reflect the reality. But what is now of crucial importance is the approach set out in paragraph [8] of the Blaauberg judgment. The Appellant had firstly to satisfy the Court that it or K Carrim Property Management (Pty) Ltd had complied with the provisions of s 15(1) of the Prescription Act.

[28]     The Lease Agreement that K Carrim Property Management (Pty) Ltd had concluded with Fair Discounters was subject to the provisions of s 15(1) of the Prescription Act from the date of its termination. It is common cause between the parties that the Lease Agreement was terminated on 14 June 2012 when Fair Discounters left the premises. Any debt that arose from the said Agreement was then due for performance within a period of three years from the date it became due otherwise it would have been overrun by prescription. In terms of s 15(1) of the Prescription Act, the running of prescription could only be halted judicially by service of a copy of the summons issued by K Carrim Property Management (Pty) Ltd and served on the Respondents within the prescriptive period. The summons issued by the Appellant and served on the Respondents did not constitute a process by which a creditor claimed payment from the debtor because there was no creditor-debtor relationship between the Appellant and the Respondents. By the time the Appellant brought the application in terms of Rule 28(4), the claim that K Carrim Property Management (Pty) Ltd had against the Respondent then had become prescribed. For that reason, the application for substitution of the creditor would have served no purpose. At the same time if the application for an amendment had been granted, it would have prejudiced the Respondents as it would have taken away their rights to plead prescription against the claim. The general approach of the courts in this country has always been to allow amendments where this could be done without causing prejudice to the other party. In Moolman v Estate Moolman and Another 1927 CPD 27, Watermeyer J, as he then was, reflected this widely held view when he remarked that:

"The practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for the purposes of Justice in the same position as they were when the pleading which is sought to be amended is filed. "

In this division which, and at the time was called the Transvaal Division, Wessels J adopted the same approach in the case of MacDuff and Co. (in liquidation) v Johannesburg Consolidated Investment Co. Ltd 1923 T.P.D. 309 when he stated as follows:

"My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting ma/a fide, so that by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise. "

 

[29]     So we are unanimous in our view that the court a quo was correct in refusing the Applicant's application in terms of Rule 28(4) and in dismissing it with costs. We are therefore of the view that the appeal cannot succeed.

Therefore, the appeal is dismissed with costs.

 

 

 

PM MABUSE

JUDGE OF THE HIGH COURT

 

 

 

MJ TEFFO

JUDGE OF THE HIGH COURT

 

 

 

N ENGELBRECHT

ACTING JUDGE OF THE HIGH COURT

 

 

 

 

Appearances:

Counsel for the Appellant:                    Adv JL Myburgh

Instructed by:                                         Errol Goss Attomeys

Counsel for the Respondent:                 Adv RS Shepstone

Instructed by:                                         Chiba Jivan Inc

Date Heard:                                            9 October 2019

Date of Judgment:                                 13 December 2019

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