WESTERN HIGH COURT, CAPE TOWN

					CASE NO.: 16894/2007
In the matter between

and

JUDGMENT DELIVERED ON 18 FEBRUARY 2010

SAMELA. AJ

Mr M W Janisch appeared for the Respondent.

[2]    The following are common cause between the parties:
a)	The Applicants, in their Plea, dated 3 March 2008, admitted the 20 October 2007 agreement and that it was binding and enforceable;
b)	The Applicants now seek to withdraw the aforesaid admission by amending their pleadings;
c)	They (Applicants) would like to introduce an agreement which was not pleaded by either the Plaintiff in its particulars of claim nor the Applicants in their Plea;
d)	
e)	
f)	The Applicants disputed the existence of a binding contract between the Plaintiff and First to Third Defendants. Furthermore, also deny that Ms Kleyn (agent) had authority to represent them, denying that the document in question was a valid contract and also deny the exercise of the option;
g)	

(j) The Plaintiff contends that the Fifth Defendant was not entitled to retain the shares under the second sale, as the Fifth Defendant was aware of an earlier sale agreement between the Plaintiff and First to Third Defendants. Consequently, the second sale must be cancelled and shares be delivered to the Plaintiff as per agreement;

(I) The pleadings have closed and the matter has not been enrolled for trial.

[3] The court is called upon to determine, exercise and apply judicially its discretion, so that fairness and justice should be done to the parties, in the following, whether:

[4] Rule 28 provides that any party wishing to amend any pleading or document other than a sworn statement, filed in connection with any proceedings, must give notice to all other parties to the proceedings of intention to amend, and furnish particulars of the amendment. Where there is an objection to the proposed amendment, the notice of objection must clearly and concisely state the grounds upon which the objection is based or founded. A party which is giving a notice of amendment in terms of the rules will be liable for the costs occasioned to any other party by the amendment, unless the court directs otherwise. The party seeking an amendment bears the onus of showing or convincing the court that the application is made bona fide and that there is no prejudice to the other party. Rule 28(4) provides that:

[5] Mr Louw, on behalf of the Applicants, submitted that the correct date of sale of shares agreement between the Applicants and the First to Third Defendants was 3 August 2007 and not 20 October 2007 as previously pleaded by the Applicants. In support of his submissions, he pointed out to the 3 August 2007 agreement, dated 3 August 2007 which was signed by the parties. He argued that a confirmatory affidavit by Susan Kleyn, who confirmed that full payment of sale of shares transaction took place on the 16 October 2007 and also advised the Fifth Defendant that as the full purchase price was paid in full, there was nothing required from him any longer. He argued further that there were no supporting affidavits to the Plaintiffs allegation that the First to Third Defendants were in agreement with it that the agreement was concluded on the 20 October 2007.

[6] Mr Janisch, on behalf of the Plaintiff, submitted that the sale of shares to the Applicants on the 20 October 2007 by the First to Third Defendants was invalid, as the Plaintiff had already concluded an agreement on the 19 October 2007 for the sale of the same shares. He argued that at the time the Applicants concluded the agreement and transfer of the aforesaid shares, they knew of the earlier agreement between the Plaintiff and the First to Third Defendants. Consequently, the shares must be delivered to the Plaintiff pursuant to its entitlement under the first sale. In support of his submissions, he pointed out that the notice of proposed amendment was made only by the Applicants (Fourth and fifth Defendants). He argued that the Applicants seek to withdraw the 20 October 2007 agreement, and now seek to plead the 3 August 2007 agreement. He argued that the proposed amendment would render the Applicants' plea excipiable, as it would not disclose a defence to the allegation that an option agreement was concluded and would not raise a triable issue. He pointed out that the proposed amendment introduced the 3 August 2007 agreement, the essence being that the Applicants' agreement was concluded before the Plaintiffs agreement. He pointed out that the proposed amendment, read with 3 August 2007 agreement failed on the 17 October 2007 for non-fulfilment of the conditions precedent (suspensive conditions), and therefore the August agreement must be regarded as having lapsed. He argued that even if the earlier agreement was valid, the First Defendant could not on that basis alone sought to impugn the latter agreement, because there was still a valid option to acquire goods, capable of being exercised and enforced against the seller, and a valid sale once the option was exercised.
I will not deal with other submissions as I am of the view that they are untenable.

[7] I am of the view that the Applicants have given a reasonable explanation for the withdrawal of the admission. The Applicants have set out clearly that after the summons were served on them, the Applicant consulted with Ms Kleyn (agent) and Mr Durandt (attorney), who drafted the 3 August 2007 agreement at Ms Kleyn's office. After consultation with Mr Wiehan (a partner in Durandt & Van Vuuren firm) who left a message on the Applicants' phone saying the Applicants should not worry since the Plea had been drafted and filed at court. The Applicants trusted Mr Wiehan though the Applicants did not receive the pleadings copy. Mr Wiehan telephoned the Applicants and informed them that their offices were closing and the Applicants requested Mr Wiehan to send the file to their new attorneys. During consultation with their new attorneys in December 2008, the Applicants had provided their new attorneys with the 3 August 2007 agreement copy. They were advised that the (3 August 2007) agreement had not been referred to in the Plea filed by Durandt & Van Vuuren and that it was necessary to amend the Plea and set out their defence, particularly, to the effect that the Applicant had purchased the First to Third Defendants' shares and paid the full purchase price on the 19 October 2007. The Applicants' explanation that the aforesaid omission could have been caused by the negligence or error or oversight of their attorneys is reasonable.

[11] It follows therefore, that the Applicants are granted the amendment. I accordingly make the following order:

Amendment is granted, with costs.