IN THE NORTH GAUTENG HIGH COURT, 
PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE NO: 27048/03
DATE: 27/07/2010
in the matter between:

and

JUDGMENT
GOODEY AJ:

1.2 There was no appearance on behalf of the Second Defendant nor on behalf of the Third Party.
1.3 For easy reference and to follow the reference to the parties as it was made by counsel, the Plaintiff will be referred to as the "Applicant" or "Plaintiff" and the First Defendant as "Firstrand" or "First Defendant".

2.1 This matter has a long history which is basically not in dispute.
2.2 It has been dealt with extensively by Mr Louw SC on behalf of Firstrand.
2.3 From Firstrand's heads of argument, the following should be mentioned in this regard:

2.3.3 The plaintiff pleaded to the first defendant's counterclaim and denied any liability to repay the loan advanced to her by the first defendant on the grounds that such loan was void as it contravened Regulations 3(1 )(e) and 10(1)(c).
2.3.4 On 31 January 2007 the plaintiff and first defendant proceeded to trial on certain separated issues before His Lordship Mr Acting Justice Mokgoatlheng (as he then was).
2.3.5 On 5 April 2007 His Lordship Mr Acting Justice Mokgoatlheng handed down a judgment in favour of the first defendant on all of the separated issued and ordered that the plaintiff's summons be dismissed and that the plaintiff pay the first defendant's costs, including the costs of two counsel.
2.3.6 The plaintiff appealed to the Supreme Court of Appeal and such appeal was heard on 2 September 2008.
2.3.7 On 12 September 2008 the Supreme Court of Appeal dismissed the plaintiff's appeal with costs, including the costs of two counsel.

2.3.9 In light thereof, the first defendant gave notice to proceed to trial on its counterclaim. In this regard the first defendant adopted, we submit correctly so, the view that the only issue in relation to its counterclaim was that of quantum as the very defence raised by the plaintiff had foursquareiy been addressed by the Supreme Court of Appeal and had been dismissed.
2.3.10 On 11 November 2008 the plaintiff's attorneys indicated that it was counsel's view that the plea to the counterclaim required an amendment and that counsel had been briefed in this regard. This was reiterated, on oath, by the plaintiff's attorney on 9 December 2008 in an affidavit filed in answer to a consolidation application. A year later, on 18 December 2009, the defendant's attorney wrote a letter to the plaintiff reminding her of these facts and recording that no amendment had been forthcoming and in writing the plaintiff "to immediately attend to effecting any further amendments that you wish to make as soon as possible in light of the eminent trial date". This letter appears in the notices bundle at 304A to 304 B.

2.3.12 On 21 April 2010 the first defendant objected to the plaintiff's notice of intention to amend her plea to the first defendant's counterclaim.
2.3.13 On 5 May 2010 the plaintiff made application for leave to amend her plea to the first defendant's counterclaim.
2.3.14 The trial in which the first defendant had hoped to obtain an order for the repayment by the plaintiff of the loan advanced to her was scheduled to commence on 21 May 2010.

See: Erasmus (Superior Court Practice) at B1 - 179
See: Erasmus on the same page "The power of the
Courts to allow material amendments is, accordingly, limited only be considerations of prejudice or injustice to the opponent"
Also see: Devonia Shipping Ltd v MV Luis 1994(2) SA 363C at 369G

See: South British Insurance Co Ltd v Ellisson 1963 (1) SA 289 (D) at 296A-C GMF Kontrakteurs (Edms) Bpk v Pretoria City Council 1978 (2) SA 219 (T) at 222H -223A

464 C;

3.7 It may well be in a clear-cut case that an amendment will be

See, by analogy, the observations in regard to prescription in:

5.1 Mr Friedmann SC on behalf of the Plaintiff argued that:

5.2 It was also argued that, at the trial of the matter, the
Applicant's previous legal representatives had been of the view that no evidence would be led and that the matter would be argued simply on the separated issues as formulated. One day before the trial commenced, Firstrand's legal representatives advised the Applicant's previous legal representatives that they intended calling Mr Andreas Ribbens ("Ribbens"), Firstrand's official in charge of Exchange Control. The Applicant's previous legal representatives were of the view that the evidence of a person other than a representative of the South African Reserve Bank was irrelevant and inadmissible. The South African Reserve Bank, at a consultation held that day, expressed the attitude that the South African Reserve Bank did not wish to get involved in the action and would not make a representative available to give evidence at the trial. The Applicant's previous Counsel had objected at the outset to the evidence of Mr Ribbens on this basis. In the light of the fact that it was not possible to secure the attendance of a representative of the South African Reserve Bank to give evidence at the trial, at the recommencement of the trial, on the next day, the Applicant's Counsel advised the Court that he did not intend to lead any evidence and did not intend to cross-examine Mr Ribbens. In the absence of any witness to gainsay the evidence of Mr Ribbens, he was effectively not in a position to conduct a meaningful cross-examination.

6.1 After careful consideration and especially the approach which I should adopt as stated above, I am of opinion that the amendment should be allowed. I am also of opinion that it is not appropriate at this time to try and decide the merits of the case at all.
6.2 Consequently I make the following order:
6.2.1 The Plaintiff is granted leave to amend her plea to the First Defendant's claim in reconvention and conditional ciaim in reconvention as per the notice of amendment;
6.2.2 Costs will be costs in the cause.
GOODEY AJ