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New Smal Construction Company (Pty) Ltd v Goodwin (South Africa) (Pty) Ltd (14116/01) [2004] ZAGPHC 30 (11 August 2004)

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CASE NO:14116/01


In the matter between

NEW SMAL CONSTRUCTION COMPANY (PTY) LIMITED............................................Plaintiff


GOODWIN (SOUTH AFRICA) (PTY) LIMITED.......................................................... Defendant


WILLIS, J: Yesterday which was the first day upon which this matter had been set down for trial the defendant made an application for a postponement of the trial. I have already given a ruling dismissing that application with costs. The defendant now makes application for an amendment. The circumstances in which this application has been made are bizarre. Counsel for the plaintiff and the defendant could not agree as to whether there had indeed been a separation of the merits from the quantum when the matter came before Flemming, DP on 1 1 April 2002. The explanation for this may arise from the fact that the defendant has employed several different counsel in this matter and has also changed its attorney.

Whatever lack of clarity there may be if one takes a narrow view of the order granted by Flemming, DJP on 11 April 2002, it is quite clear from the transcript of the proceedings together with the draft order which clearly was prepared between the parties and signed by their representatives, as well as the affidavit filed on behalf of the plaintiff, that it was indeed agreed as between the plaintiff and the defendant that the merits and the quantum to be separated and that the merits were to be disposed of by Flemming, DJP. It also appears clearer from the transcript that Flemming, DJP made an order which the parties would have understood at the time to have disposed of the question of the merits. In other words all that remains for determination, as far as I am concerned, is the calculation of quantum in this particular case.

The quantum is to be computed according to a formula, which is provided for in an agreement which it is common cause exists between the parties. In that formula there are three variables, a, b and c. In an agreement concluded between the parties in March 2003 the parties agreed as to what a and b should be. All that remains for determination was c. c is a variable, the computation of which lies peculiarly within the knowledge of the defendant.

The application for the amendment was brought well past even the eleventh hour. Although there is some disagreement between the parties as to when precisely the defendant served the notice of amendment, when precisely the plaintiff became aware of it, it is clear that it was not more than a few weeks ago. This is a matter in which the summons was served in June 2001. There have been innumerable exchanges of correspondence between the parties. There have been pre-trial conferences and it is quite clear as I have already indicated that on 11 April 2002 there was an understanding between the parties that all that remained for determination was the quantum.

It seems to me that the application for amendment touches almost exclusively on issues relating to the merits and therefore is impermissible. A further factor which weighs with me is that it has been brought extremely late in the day. It may be that the explanation for this is to be found in the fact that Mr Nowitz has been newly brought into the matter. That may be so but I do not see why the plaintiff should be in any way penalised by the defendant's caprice in terms of employing attorneys and counsel.

It seems to me that the application for amendment raises one issue which may be relevant to the quantum. This is the allegation that since April 2004 the parking garage located on the hotel property has been closed and no parking bays there have been let. This may perhaps touch upon the calculation of the amount due in terms of the formula to which I have already referred. On the other hand I wish to indicate that it may not, precisely because the formula refers to the calculation being made in terms of a and b annually in advance and the anniversary date in this agreement always occurred in March whereas the allegation relating to the parking garage in the hotel property only becomes relevant after April 2004.

Be this as it may Mr Peter has indicated that he would have no objection to the defendant leading evidence as to the closure of the parking garage located in the hotel and that clearly Mr Nowitz for the defendant would be free to argue the computation of the amount owing, taking this factor into account if it was relevant.

Accordingly I am satisfied that the appropriate order is to dismiss the application for the amendment with costs.