IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN

v

FORTUIN, J:

[2] The agreement contains a non-variation clause which stipulates that no modification, variation or alteration of the agreement shall be valid unless in writing and signed by both parties.

[3] At the hearing of the trial in the Magistrate's Court on 13 March 2008, Respondent raised an objection regarding certain questions posed in support of Appellant's defence of a subsequent oral agreement reached between the parties.

[5] Appellant filed a notice in terms of Rule 55A of the Magistrate's Court Act 82 of 1944, which notice was withdrawn after Respondent filed an objection to the intended amendment.

[6] A further notice in terms of Rule 55A was filed by Appellant to which Respondent filed another objection. The objection was upheld and the application by Appellant to amend his plea was dismissed with costs. This is an appeal against that order.

THE AMENDMENTS APPLIED FOR IN THE COURT BELOW
[7]     The amendments applied for were to the following effect:
7.1. That Appellant had discharged his obligation in terms of the written Deed of Sale by substituted performance, which Respondent had accepted.

7.3.   That Respondent was estoppped from enforcing the alleged obligation on which it had sued.

[8] In dismissing the application to amend the plea, the magistrate appears to have been persuaded that the defences which Appellant sought to introduce were dependant on the proof of an oral agreement which had the effect of varying the provisions of the deed of sale. The magistrate was quite correctly of the view that in principle it would not be permissible for a party to rely on such an agreement in the circumstances, not only because of the provisions of the non-variation clause, but also because of the effect of the formalities imposed in terms of the Alienation of Land Act 68 of 1981. The magistrate was misdirected, however, in equating an allegation of substituted performance with an amendment or variation of the agreement in terms of which stipulated performance was due. He was probably confused in this regard by the unnecessary allegation in the proposed amended pleading of an antecedent oral agreement in terms of which the allegedly substituted performance was defined.

[10] The magistrate therefore erred in not recognising the defence of substituted performance as a triable defence, not inconsistent with either the non-variation clause or the formalities in terms of the Alienation of Land Act.

THE LAW WITH REGARD TO AMENDMENTS

[15] It has been established that the object of allowing an amendment is "to obtain a proper ventilation of the dispute between the parties".

[16] As stated earlier, Appellant raised the following defences to the summons, i.e. substituted performance was tendered and accepted, in the alternative that there was an agreement not to enforce his claim and also in the alternative, that Plaintiff is estopped from alleging that Defendant has not performed.

[17] This court has to decide whether the above issues are indeed triable issues. I am of the view that the defence of substituted performance is a triable issue and that allowing the amendment would not cause an injustice to the Respondent that could not be cured by either a cost order or by a postponement.

[18] Rule 55 A(4) of the Magistrates Courts Rules of Court affords the courts a discretion to allow an amendment. Counsel for Appellant argued, correctly in my view, that, by refusing the amendment at this stage, the door to litigation will be closed to Appellant and he will be precluded from raising a triable defence.

[20] The appellant has achieved substantial success on appeal and is entitled to the costs of the appeal. He sought an indulgence from the court below and he was entitled only to partial success in his application to amend his plea. In the circumstances I consider that it would be appropriate if each party were to bear his/its own costs in the application for leave to amend before the magistrate.

[21]   In the circumstances, I would make the following order:
1. The appeal is upheld with costs.
2. The order of the magistrate dismissing the application with costs is set aside and substituted by an order -

(iii)     Directing that each party shall bear his/its own costs 3.      Respondent is ordered to pay Appellant's costs of appeal.

FORTUIN, J

I agree.

BINNS-WARD, J