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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

Case Number: KP 557/2018

In the matter between:-

NEP CONSULTING ENGINEERS (PTY) LTD              PLAINTIFF

and

MAQUASSI HILLS LOCAL MUNICIPALITY                DEFENDANT

JUDGMENT

STANTON, AJ

INTRODUCTION:-

[1]     This is an opposed application for the amendment of the plaintiff’s particulars of claim.

[2]     The defendant opposes the application on the solitary ground that the amendment to the particulars of claim was filed purely to circumvent the discovery procedure initiated by the defendant.

CHRONOLOGY:-

[3]     The following chronological matrix is common cause and relevant to the adjudication of this application, namely:-

3.1     The plaintiff instituted action against the defendant on 14 December 2018. In its particulars of claim, the plaintiff avers that the action arises from a contract awarded to the plaintiff, pursuant to a tender, in terms of which the plaintiff was to provide professional services for the planning and implementation of civil engineering projects for water, sanitation, roads and stormwater drainage. The plaintiff avers that it completed the technical reports in compliance with its contractual obligations and that the defendant is liable to it for payment of the amount of R8 869 613.75;

3.2     The defendant failed to enter an appearance to defend and on 19 February 2019, the plaintiff filed an application for default judgment in terms of Uniform Rule 31(5);

3.3     On 11 March 2019, the defendant served an application in terms of Uniform Rule 35(12), seeking from the plaintiff various documents referred to in its particulars of claim;

3.4     On 01 April 2019, the plaintiff provided a response to the Uniform Rule 35(12) notice, in essence stating that the defendant is either in possession of the requested documentation and/or that the information is not required for purposes of pleading. The plaintiff’s response was, however, filed in terms of Uniform Rule 35(14);

3.5     Together with its reponse to the Rule 35(12) notice, the plaintiff filed a notice of bar;

3.6     On 08 April 2019, the defendant served and filed its plea;

3.7     On 03 May 2019, the defendant issued an application to compel the plaintiff to comply with the Uniform Rule 35(12) notice. The application to compel was subseqently removed from the unopposed roll;

3.8     On 29 May 2019, the plaintiff served a notice in terms of Uniform Rule 30(2)(b), informing the defendant that its Rule 35(12) application was irregular in view of the fact that the defendant had already filed its plea;

3.9     On 12 July 2019, the plaintiff filed its discovery affidavit;

3.10   On 07 August 2019, the defendant served and filed a notice in terms of Uniform Rule 35(3). In this notice the defendant requested the same documents which were requested on 11 March 2019; and

3.11   On 27 August 2019, the plaintiff filed its notice in terms of Uniform Rule 28(1) to amend its particulars of claim.

LEGAL PRINCIPLES: AMENDMENTS TO PLEADINGS:-

[4]     Its trite that in deciding whether to grant or refuse an application for an amendment, the court exercises a discretion and, in so doing, leans in favour of granting it in order to ensure that justice is done between the parties by deciding the real issue between them.[1] Also trite is that amendments will usually be allowed, unless the amendment is made mala fide or would cause prejudice to the other party which cannot be compensated by a costs order or some other suitable order such as a postponement.[2]

[5]     Miller J in South British Insurance Co Ltd v Glisson,[3] explained that:-

“Prejudice, in this context, has a wider connotation than that and embraces prejudice to the rights of a party in regard to the subject matter of the litigation, provided there is a causal connection which is not too remote between the amendment of the pleading and the prejudice to the other party’s rights.”

[6]     Mr MC Makgato, on behalf of the defendant, could not provide an explanation as to the reason why the defendant proceeded to file its plea in lieu of persisting with the application to compel. He submitted that the amendment is prejudicial as it enables the plaintiff to circumvent discovery in respect of the requested documents and information.

[7]     In view of the provisions of Uniform Rule 35, I am not persuaded that the defendant would be prejudiced if the amendment to the particulars of claim is granted. The real issues between the parties should be ventilated to ensure justice.

[8]     Having regard to all the circumstances, I am disposed to exercise my discretion in favour of the plaintiff.

COSTS:-

[9]     Mr JD Matthee, on behalf of the plaintiff and with reference to In Re Alluvial Creek Ltd[4] and Nel v Waterberg Landbouers Koöperatiewe Vereniging,,[5] argued that a cost order should be granted on an attorney and client scale in view of the fact that the defendant’s objection lacks merits and was ill-conceived. He added that the defendant also burdened its answering affidavit with numerous immaterial pleadings and documents.

[10]    In Re Alluvial Creek Ltd, [6] Gardiner J stated as follows in the context of a punitive costs order:-

"Now sometimes such an order is given because of something in the conduct of a party which the Court considers should be punished, malice, misleading the Court and things like that, but I think the order may also be granted without any reflection upon the party where the proceedings are vexatious, and by vexatious I mean where they have the effect of being vexatious, although the intent may not have been that they should be vexatious. There are people who enter into litigation with the most upright purpose and a most firm belief in the justice of their cause, and yet whose proceedings may be regarded as vexatious when they put the other side to unnecessary trouble and expense which the other side ought not to bear."

[11]    I am in agreement that the defendant’s opposition to the amendment was unneccesary and caused needless expense. I am, however, not convinced that a punitive cost order is warranted in the circumstances.

ORDER:

          Consequently the following order is made:-

          The application to amend is granted, with costs.

____________________

A STANTON

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION: MAHIKENG

APPEARANCES

DATE OF HEARING                              :        12 JUNE 2020

DATE OF JUDGEMENT                          :        29 JUNE 2020

COUNSEL FOR PLAINTIFF                     :        ADV JD MATTHEE

COUNSEL FOR DEFENDANT                  :        ADV MC MAKGATO

ATTORNEYS:-

FOR PLAINTIFF                     :        Van Rooyen Tlhapi Wessels Inc.

                                                                   09 Proctor Avenue

                                                                   MAHIKENG

FOR DEFENDANT                    :        Ziswe Attorneys

Office No. 05 Shasons Centre

43 Shippard Street

MAHIKENG

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