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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 97510/16

(1)       REPORTABLE: YES

(2)       OF INTEREST TO OTHER JUDGES: YES

(3)       REVISED.

In the matter between:

MARTINUS THEUNIS STEYN BOTHA                                                             Applicant / Plaintiff

And

UNIQON WONINGS (PTY) LTD                                                                  Respondent / Defendant

JUDGMENT

SAWMA, AJ:

1.   This is an opposed application for the amendment of the applicant’s amended particulars of claim. The applicant gave notice on the 29^th day of October 2019 that he intended amending his particulars of claim by, inter alia, inserting a new paragraph after paragraph 8.4 thereof, the new paragraph to be numbered, and to read as follows:

“8.4A. It was a tacit term of the agreement as read with Schedule A thereto that, if further projects are initiated by the Plaintiff with the concurrence of the Defendant, for completion by the Defendant, the Defendant will be obliged to add those projects in writing to Schedule B and to sign the amended Schedule B.”

2.   The notice of amendment also communicated that the applicant sought to delete the introductory portion of paragraph 10 to the particulars of claim, and to substitute therefore the following:

“10. In addition to the 6 projects already recorded in Schedule B to the agreement, the Plaintiff, as contemplated in clause 3 of the agreement read with Schedule A, initiated 11 further development projects with the concurrence of the Defendant in which projects the Defendant is the developer, details of which are as follows:”

3.   The respondent in this application (being the defendant in the trial action) reacted to the proposed amendment by taking objection to the introduction of the new paragraph 8.4A. It did so by way of a notice of objection in accordance with rule 28(3) of the Rules of Court, contending that:

“1. The intended amendment as envisaged as paragraph 8.4A of the particulars of claim will render the Plaintiff’s particulars of claim excipiable on the basis that the intended amendment will introduce a tacit terms expressly precluded by the provisions of the written agreement concluded between the Plaintiff and the Defendant. The express terms of the said written agreement precludes the importation of a tacit terms as intended by the plaintiff in his notice of intention to amend.”

4.   In the result, the applicant commenced the current application seeking leave to amend his particulars of claim in accordance with the proposed amendments contained in the notice of intention to amend together with ancillary relief.

5.   Before commencing with an analysis of the arguments advanced on behalf of each of the applicant and respondent, it is first necessary to:

5.1  refer to the request made by Mr. Van Der Merwe SC (representing the applicant) to correct what he termed as a misnomer in the formulated amendment sought by the applicant, and the response thereto by Mr. Maritz SC representing the respondent;

5.2  refer to certain of the terms of the agreement forming the subject matter of the litigation between the parties so as to contextualise the arguments; and

5.3  quote certain portions of the judgement delivered by Basson J in regard to an earlier exception taken by the respondent and the findings made in that regard.

6.  As to the misnomer, Mr. Van Der Merwe SC drew to my attention that the proposed paragraph 8.4A to the particulars of claim did not seek to plead out a mutual obligation resting upon each of the parties to add projects to schedule B. It asserted instead that the obligation would be one resting upon the defendant. The pleadings however make clear, so it was argued, that the applicant accepts the obligation in question to be a mutual obligation with the applicant having already signed the amended schedule B and having already made demand on the defendant to do likewise. I was accordingly asked to consider the proposed paragraph 8.4A to read:

“It was a tacit term of the agreement as read with Schedule A thereto that, if further projects are initiated by the Plaintiff with the concurrence of the Defendant, for completion by the Defendant, both the Plaintiff and the Defendant will be obliged to add those projects in writing to Schedule B and to sign the amended Schedule B.”

7.  At the commencement of his address, Mr. Maritz SC confirmed that I could treat the amendment as one sought in the terms quoted in paragraph 6 above. That was because both parties required me to determine the true issue between them, that issue being whether or not it is legally permissible to imply a term of the nature sought by the applicant. I accordingly proceed to consider the proposed amendment as reformulated in terms quoted in paragraph 6 above.

8.  As to the terms of the written agreement between the parties giving rise to this litigation, the applicant pleads at paragraph 4 of its particulars of claim that on the 10^th of August 2016 and at Pretoria he, acting personally, and the respondent represented by Mr. H Bendeman concluded annexure “XYZ” to the particulars of claim together with its 3 schedules. Those schedules are respectively schedule A, as referred to in paragraph 1 of the agreement, schedule B as referred to in paragraph 3 of the agreement and schedule C as referred to in paragraph 4 of the agreement. Those schedules were in turn attached as annexures “A”, “B” and “C” respectively to the particulars of claim.

9.  The agreement:

9.1   is entitled “Dienskontrak”;

9.2   explains in the introduction (clause 1) that there is an extant service contract concluded between the applicant on the one hand and the respondent on the other and that, pursuant to consultation between the parties, they had agreed to a performance driven remuneration package, the purpose of the agreement being to reduce that agreement concerning remuneration, and related matters, to writing;

9.3  expresses in clause 2 that the service contract would not be amended save that those provisions relating to monthly reward that expired on the 31^st of December 2005, which was deleted and, with effect from the 1^st of January 2006, a 5% profit based reward was implemented in accordance with the terms and provisions set out in the agreement;

9.4  provides in clause 3 of the agreement, which is central to the determination of this matter, that:

“3. PROJEKTE:

Hierdie ooreenkoms is van toepassing op alle projekte wat deur THEUNS [the applicant] geinisieer word die eerste ses waarvan aangeteken is op die lys van projekte hierby aangeheg as bylae B. Alle nuwe projekte wat hieraan onderworpe is sal van tyd tot tyd op gemelde bylae bygevoeg word en die inskrywing deur die partye onderteken word as bewys dat die ooreenkoms daarmee aangevul is.

Geen vergoeding sal deur UNIQON [the respondent] aan THEUNS betaalbaar wees nie vir enige dienste of bydrae gelewer ten opsigte van ander projekte of aspekte van UNIQON se bestuur of andersins nie tensy UNIQON dit in sy uitsluitlike diskresie vrywillig wil doen.”;

9.5 records in clause 11 of the agreement that:

“Hierdie is die algehele ooreenkoms tussen die partye en geen voorstelle, wysigings of toevoeging sal teenoor mekaar afdwingbaar wees nie tensy dit op skrif gestel is en deur beide partye onderteken is nie. Geen toegewing wat die een party teenoor die ander verleen, sal hulle onderskeie regte hieringevolge benadeel nie.”

10.  As the founding affidavit to the application for amendment discloses, the respondent had previously excepted to the applicant’s particulars of claim, contending that such (as then formulated) disclosed no cause of action. By agreement between the parties the issue arising in that exception was disposed of in terms of rule 33(4) as a separate issue at trial. The common cause facts advanced in that application also disclosed that, prior to trial, the applicant had introduced a further amendment to his particulars of claim raising constitutional issues. The parties had however agreed to the determination of the separated issue on the basis of a consideration of the particulars of claim as if they had not been amended by the constitutional issues (i.e. as they stood prior to that amendment).

11.  The separated issue  was argued before, and disposed of by, Basson J who delivered a written judgement dealing therewith. The relevant portions of the judgement of Basson J, read as follows:

“[8] The plaintiff claims that the agreement would also apply to all (further) projects initiated by the plaintiff (in addition to the first six projects that were already listed in schedule B to the agreement). He further pleads that all further/new projects subject to the agreement would from time to time be added onto schedule B and that the parties would sign the recordal of the new projects, in order to prove that the agreement was so amplified.

[9] The defendant disputes that the adding of new projects merely constitutes a recordal of the new projects and submitted that any further additions to schedule B, in fact amounts to an amendment of the agreement. I agree. An interpretation that further additions of projects to schedule B merely constitutes a recordal of an agreement having been reached in respect of new projects, will, in my view conflict with the clear wording contained in clause 11 of the agreement (the non-variation clause).”

and:

“[14] It is common cause that,[1] although the plaintiff signed the updated schedule B, the defendant did not. On 27 September 2016, the plaintiff demanded that the defendant sign the updated version of schedule B. In this regard the plaintiff pleads that it has a contractual right to compel the defendant to add the eleven new projects, in writing to schedule B and to initial the amended schedule B.

[15] In respect of the latter submission, it is important to point out that there is no express provision in the agreement, nor does the plaintiff seek to rely on any tacit or implied term, to the effect that, if further projects are initiated by the plaintiff, the defendant will be obliged to add those projects in writing to schedule B and to forthwith sign the amended schedule B. This is not what clause 3 of the contract states: Clause 3 requires that all new projects subject to the agreement would be added onto schedule B and the parties would then sign the amended schedule.”

12. That clears the way to deal with the amendment sought by the Applicant. As already observed, the amendment is resisted on the basis that the proposed paragraph 8.4A will render the amended particulars of claim excipiable.

13.  A Court ought to refuse an amendment which would render the pleadings excipiable because to allow such an amendment would be prejudicial to the opposing party. The Constitutional Court[2] has endorsed the established common law approach to the manner in which a Court seized with an application to amend ought to exercise its discretion.[3] Ngcobo J said, in this regard, that:

“[9] The principles governing the granting or refusal of an amendment have been set out in a number of cases. There is a useful collection of these cases and the governing principles in Commercial Union Assurance Co Ltd v Waymark NO. The practical rule that emerges from these cases is that amendments will always be allowed unless the amendment is mala fide (made in bad faith) or unless the amendment will cause an injustice to the other side which cannot be cured by an appropriate order for costs, or unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed”[4]

14. Those principles (conveniently collected in Commercial Union Assurance Co Ltd v Waymark NO[5]), Ngcobo J went on to say, causes the question to be posed in each case as to “what do the interests of justice demand?”[6]

15. Mr. Van Der Merwe SC, in urging me to grant the application for the amendments, referred to the trite principle that a tacit term, once read into a written agreement, is then deemed to have been included as part of the writing itself.[7] The argument accordingly proceeded that, once the tacit term is to be read into the written agreement, as postulated by the proposed amendment, there is no further scope for the respondent to complain that the proposed tacit term violates the non-variation clause being precluded by the terms thereof.

16. Mr Maritz SC on the hand, relying on the equally trite principle that a tacit term cannot be sustained where it is at variance with any of the express provisions in the agreement,[8] submitted that the proposed tacit term would conflict with the provisions of the non-variation clause (clause 11) which would then be subverted.

17. The provisions of clause 11 of the written agreement do not expressly preclude a party from relying upon a tacit term nor do the provisions thereof expressly assert that neither party will be obliged to sign any amended schedule B. What Basson J found was that the addition of a project to schedule B required an amendment to the agreement and accordingly, for the agreement to be applicable to that project, the parties would be required to add the project to schedule B and to both initial that amendment.

18. The essence of Mr. Maritz SC’s argument was that, as clause 3 of the written agreement requires any further projects to be added to schedule B and signed by both parties, only then would the written agreement become varied thereby. The tact term, in contradistinction, would have it that the parties incurred rights and obligations vis-à-vis that very thing (further projects) despite the absence of any written agreement thereon, as contemplated by clause 3 read with clause 11.

19. To my mind, however, there is a distinction between:

19.1  the parties being burdened by an obligation to execute the addendum; and

19.2 the rights and obligations that would arise once that execution had taken place.

20.  Once any additional project had been added to schedule B, and the parties had appended their signatures thereto, the applicant would then, inter alia, become entitled to a profit participation resulting therefrom and the respondent would, inter alia, become obliged to effect payment thereof.

21.  So stated, the right afforded to each of the parties, and the concomitant obligation thereby imposed, arising from the proposed tacit term differs in substance from that which would eventuate from a further permitted addition of a project to the written agreement. Had the written agreement contained the very term now postulated by way of the proposed paragraph 8.4A, i.e. as an express term in the written agreement, could it be contended by the respondent that there was then an inherent conflict between that term and the non-variation clause? I would think not. The immediate answer to any such contention would be “but that is precisely what the parties have agreed”.

22. The use of the words “Hierdie ooreenkoms is van toepassing op alle projekte wat deur THEUNS geinisieer word…” (my emphasis) and “alle nuwe projekte wat hieraan onderworpe is sal van tyd tot tyd op gemelde bylae bygevoeg word en die inskrywing deur die partye onderteken word” (again my emphasis) are so styled that, to my mind, they lend some credence to the implied term contended for by the applicant. I do not need to be satisfied at this point that the term must be implied into the agreement, but merely that it can. I am so satisfied.

23. For these reasons I am accordingly inclined to grant the amendments sought by the applicant, it being in the interests of justice to do so.

24.   That leaves only the question of costs. Mr. Maritz SC argued that the opposition to the amendment was perfectly reasonable and that, the amendment sought being an indulgence, if I were inclined to grant it, I should direct that the applicant bear the costs thereof. In reply, Mr. Van Der Merwe SC concurred with this approach.

25.  In the circumstances I grant an order in the following terms:

25.1 The applicant is granted leave to amend his particulars of claim:

25.1.1 by the insertion of the following paragraph pursuant to paragraph 8.4 thereof, namely:

“8.4A. It was a tacit term of the agreement as read with schedule A thereto that, if further projects are initiated by the plaintiff with the concurrence of the defendant, for completion by the defendant, both the plaintiff and the defendant will be obliged to add those projects in writing to schedule B and to sign the amended schedule B”; and

25.1.2  as contemplated in paragraphs 2 to 11 of the plaintiff’s notice of intention to amend dated the 29^th of October 2019.

25.2 The applicant is granted leave to file his amended pages containing the proposed amendments within 5 (five) days from the date of this order.

25.3 The respondent is entitled to effect consequential amendments thereto within a period of 15 (fifteen) days from the filing of the applicant’s amended pages as contemplated in paragraph 25.2 above.

25.4   The applicant is to bear the costs of this application.

Electronically submitted

This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by e-mail and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 13 October 2021.

_______________________

SAWMA AJ

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

Date of Hearing:          02 August 2021

Judgment Delivered:   13 October 2021

APPEARANCES

For the Applicants:      Adv MP Van der Merwe SC

Instructed by:              Tim Du Toit Inc

 

For the Respondents: Adv NGD Maritz SC

                                  

Instructed by:              Van der Merwe & Associates

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