CASE
NO I 3663/2009

IN
THE HIGH COURT OF NAMIBIA

In the matter
between

FICH
OPPORTUNITY FUND SPC
….....................................................PLAINTIFF

AND

QUINTON VAN
ROOYEN
…..............................................................DEFENDANT

Heard
on: 23 NOVEMBER 2010

Delivered: 28 JUNE
2012

JUDGMENT

___________________________________________________________________________________

UEITELE A J [1]
In this matter the plaintiff is seeking leave from this court to
amend its particulars of claim. The defendant objects to the intended
amendment.

[2] I find it
appropriate to briefly sketch the background to this application.
During October 2009, the plaintiff instituted an action for damages,
against the defendant. The plaintiff basis its claim for damages on
the alleged breach of a partly written and partly oral agreement
entered into and between the parties.

[3] In terms of
the agreement, the plaintiff would purchase from a third party, who
is not a party to these proceedings, 3 million ordinary shares of
Trustco Group Holdings Ltd at an amount N$3-50 each. In terms of the
written part of the agreement, the defendant undertook to buy the
shares at the transaction price between the plaintiff and the third
party plus 10% premium 90 days from 31 March 2008. Annexure “A”
to the particulars of claim refers to this transaction as a buy-back
transaction.

[4] The plaintiff
further alleges that the agreement between the parties was amended by
a further oral agreement between the parties, and the 90 day period
was extended until end of September 2008.

[5] The plaintiff
furthermore alleges that after the end of September 2008, the
agreement was once again amended by agreement between the parties and
the 90 days period was once again extended to an uncertain future
date. Thus the averment is that the undertaking to buy was extended
to now be either on demand, alternatively within a reasonable time,
and that the defendant would be liable for further interest at 40%
per year. As proof of the last purported amendment, the plaintiff
relies on copies of certain e-mails, contained in annexure “B”
to the plaintiff’s particulars of claim.

[6] The defendant
requested further particulars from the plaintiff. After the plaintiff
supplied the requested particulars the defendant gave notice that it
excepts to the plaintiff’s particulars of claim as amplified by
its further particulars. The defendant then gave further notice to
strike out annexure “B” to the plaintiff’s
particulars of claim. After the defendant’s notice to strike,
the plaintiff lodged a notice of amendment. The defendant objects to
the plaintiff’s intended amendments, hence the application to
this Court for leave to amend the particulars of claim.

The
legal principles

[7] The amendment
of pleadings is governed by Rule 28 of this Court’s Rules. Rule
28(1) to (4) provides as follows:

“28. (1) Any
party desiring to amend any pleading or document other than an
affidavit, filed in connection with any proceeding, may give notice
to all other parties to the proceeding of his or her intention so to
amend.

(2) Such notice
shall state that unless objection in writing to the proposed
amendment is made within 10 days the party giving the notice will
amend the pleading or document in question accordingly.

(3) If no objection
in writing be so made, the party receiving such notice shall be
deemed to have agreed to the amendment.

(4) If objection is
made within the said period, which objection shall clearly and
concisely state the grounds upon which it is founded, the party
wishing to pursue the amendment shall within 10 days after the
receipt of such objection, apply to court on notice for leave to
amend and set the matter down for hearing, and the court may make
such order thereon as to it seems meet.”

[8] Both Mr
Tötemeyer who appeared for the plaintiff and Mr Heathcote who
appeared for the defendant are agreed as to the general legal
principles relating to amendments of pleadings. I will below briefly
outline the approach taken by this Court as regards amendment of
pleadings. Manyarara AJ said, in the case of South
Bakels (Pty) Ltd and Another v Quality Products and Another: 2008
(2) NR 419 (HC) at page 421:D-H

“In deciding
whether to grant or refuse an application for an amendment the court
exercises 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.

An amendment which
would render the relevant pleading excipiable cannot lead to a
decision of the real issues and should not be granted. On
the other hand, it may be more sensible in a given case to grant the
amendment and let the other party file an exception. Applications for
amendments should not deteriorate into mini-trials since amendment
proceedings are not intended or designed to determine factual issues
such as whether the claim has become prescribed .
. .{ My Emphasis}

An amendment must
raise a triable issue - i.e., it may be of sufficient importance to
justify any procedural disadvantages caused by the amendment
proceedings in the sense that the issue is viable and relevant or
will probably be
covered by the available evidence.
It will normally not be granted if there will be prejudice to the
other party which cannot be cured by an order for costs or a
postponement. Prejudice in this context is not limited to factors
which affect the pending litigation but embraces prejudice to the
rights of a party in regard to the subject-matter of the litigation.
. . There will not be prejudice if the parties can be put back for
the purpose of justice in the same position as they were when the
pleading, which is sought to be amended, was originally filed. The
onus rests upon the applicant seeking the amendment to show that the
other party will not be prejudiced by the amendment.” {My
Emphasis}

The learned Judge
went on at page 423 E-F and quoted with approval the passage by Van
Dijkhorst J in De Klerk and Another v Du Plessis and Others
1995 (2) SA 40 (T) (1994 (6) BCLR 124) as follows:

“An amendment
which would render a pleading excipiable should not be allowed.
Whether a pleading would or would not become excipiable is a matter
of law which should be decided by the Court hearing the application
for amendment. It would be incorrect, in my view, to hold that it is
arguable that the amendment would not render the pleading excipiable,
allow it, and send the parties away to prepare for another battle on
exception on the same point. I agree with views …’

The grounds
on which the defendant objects to the amendments

[9] The plaintiff
objects to the amendment on the premises that the proposed amendment
will render the particulars claim vague and embarrassing and
excipiable or cause the particulars of claim to become vague and
embarrassing and in addition, the particulars of claim do not
disclose a cause of action.

[10] The grounds
on which the defendant objects to the intended amendments may be
summarized as follows-

(a) the conclusion
which the plaintiff reaches in paragraph 9 (after having inserted,
through the amendment, who the duly authorized agents of the
plaintiff were), namely that the e-mails (contained in annexure “B”
to the particulars of claim) constituted an amendment of the earlier
agreement, is not substantiated or supported by the e-mail
correspondence attached by the plaintiff in support of the alleged
amendment;

(b) the interest
at a rate of 40% claimed by the plaintiff is contrary to the Usury
Act No 73 of 1968 and legally unenforceable;

(c) the
introduction of the proposed new paragraph 14 to the plaintiff’s
particulars of claim, renders the particulars of claim vague and
embarrassing, as no amendment could have been effected by the e-mails
attached to the particulars of claim. The proposed new paragraph 14
refers to an amended agreement allegedly entered into and while the
plaintiff was represented by the duly authorized agents referred to
in paragraph 1 of the notice to amend. The words ”amended as
aforesaid” sought to be introduced by the new paragraph 14,
renders the particulars of claim vague and embarrassing;

(d) the
plaintiff’s claim is in effect one for specific performance
disguised as damages;

(e) the
plaintiff’s claim fails to specify either what the period of
the future date (on which damages could be calculated with finality)
might be, or when/ if the future period will come to an end, and thus
ignores the once and for all rule;

(f) the plaintiff
failed to calculate its damages, whereas it was quite possible to
calculate same at the moment of the alleged breach, alternatively at
the moment of cancellation of the agreement;

(g) the plaintiff
impermissibly claims interest on damages for a period prior to the
date of judgment.

Evaluation
of the objections

[11] I am of the
view that in order to determine whether the intended amendments are
excipiable or not, it is necessary look at the amendments which the
plaintiff seeks to introduce. The plaintiff seeks to effect two
amendments, first amendment which the plaintiff seeks leave to
introduce relates to paragraph 9 of the particulars of claim: The
original paragraph 9 of the particulars of claim partly reads as
follows:

“9 Thereafter
a further agreement was reached between plaintiff and defendant,
which further amended the terms of the agreements as set out in
paragraph s 4 and 7 above (and to the extent as set out her
hereafter). That agreement was concluded by way of e-mail
correspondence exchanged during or about October 2008. Copies of the
relevant e mails are attached hereto as annexure ‘B’. The
following were, inter
alia,
express, alternatively implied in the further alternative tacit terms
of the aforesaid agreement whereby the aforementioned earlier
agreements were amended…”

[12] The plaintiff
is seeking leave to introduce a sentence immediately after the words
annexure B as quoted above. If allowed paragraph 9 will read as
follows (the underlined sentence representing the proposed
amendment):

“9 Thereafter
a further agreement was reached between plaintiff and defendant,
which further amended the terms of the agreements as set out in
paragraph s 4 and 7 above (and to the extent as set out her
hereafter). That agreement was concluded by way of e-mail
correspondence exchanged during or about October 2008. Copies of the
relevant e mails are attached hereto as annexure ‘B’. At
all relevant times thereto the plaintiff was duly represented by one
or more
or
all of Jenny Chamberlain, Chai Musoni or a company named SAL
Advisory.
The following were, inter
alia,
express, alternatively implied in the further alternative tacit terms
of the aforesaid agreement whereby the aforementioned earlier
agreements were amended…””

[13] The
defendant’s objection to the amendments are that “The
Plaintiff’s proposed amendment will render the particulars of
claim vague and embarrassing and excipiable, in that the plaintiff
alleges in paragraph 9 of its particular of claim that a further
agreement was reached between the parties which was concluded by way
of e-mail correspondence exchanged during October 2008.

[14] I fail to see
how the above quoted sentence (which the plaintiff seeks to
introduce) will render the particulars of claim vague and
embarrassing and excipiable. If anything the proposed amendment
simply sheds clarity as to who represented the plaintiff during the
alleged negotiations to extend the period within which the shares
were to be purchased by the defendant.

[15] The second
amendment which the plaintiff seeks to introduce relates to
paragraphs 13 and 14 of its particular of claim. The original
paragraphs 13 and 14 read as follows:

“13 Defendant
failed to comply with, or adhere to, the aforementioned demand. As a
result, the plaintiff dully cancelled the aforementioned agreement
(as amended) between the parties and conveyed its election to do so
to defendant on or about 10 August 2009 and by means of delivery of
annexure “D” hereto.

14 Plaintiff is
currently unable to sell the aforesaid shares.”

[16] The second
amendment which the plaintiff is seeking leave to introduce is to
shortened paragraph 13, introduce a new paragraph 14 and renumber the
remaining paragraphs. If the amendments are allowed the particulars
of claim will amongst others read as follows (the underlined
sentences representing the proposed amendments):

“13 Defendant
failed to comply with, or adhere to, the aforementioned demand.

14 Defendant’s
breach of the agreement as referred to in paragraph 11 above (either
by itself or in so far a as it may be required also considered
against the background of what is stated in paragraphs 12 and 13
above constituted a sufficiently serious breach of a sufficient
material and important term of the agreement (amended as aforesaid)
so as to justify and entitle the plaintiff to cancel such agreement.

15 As a result,
the plaintiff dully cancelled the aforementioned agreement (as
amended) between the parties and conveyed its election to do so to
defendant on or about 10 August 2009 and by means of delivery of
annexure “D” hereto.

16 Plaintiff
is currently unable to sell the aforesaid shares.”

[17] The
defendant’s grounds on which he objects to the amendment is
that “The plaintiff’s introduction of the new processed
paragraph 14 to its particulars of claim which refers to “the
agreement (amended as aforesaid)”, renders its particulars of
claim vague and embarrassing, in that no “amendment” was
effected as alleged, plaintiff advances the following reasons as a
basis of denying that any amendments were effected:

The e-mail attached
by the plaintiff as annexure “B” to its particular of
claim purportedly in support of the alleged terms and condition
agreed upon do not support any one of the alleged terms and condition
alleged and set out in subparagraph 9.1 and 9.2 of the particulars of
claim because the e-mail correspondence refers to “a loan”
that need to be settled soon and the e-mail dated 26 October 2008
refer to terms that need to be agreed and the final terms which need
to be negotiated”,

The conclusion which
the plaintiff reaches in paragraph 9, namely that the e-mail
constituted an amendment to the earlier agreed is thus not
substantiated or supported by the e-mail correspondence attached by
the plaintiff in support of the allegation in sub-paragraph 9.2 of
its particulars of claim that” interest on the purchase price
of 40% per annum calculated as from 1 July 2008 compounded daily
until the re-purchase occurred”

[18] All these
aspects raised by the defendant are not part of the proposed
amendments. It is not the proposed amendment that seeks to introduce
the e -mail which the defendant regards as offensive. It is also not
the proposed amendments that introduce the aspects which constitutes
the different grounds of objection. I am therefore not convinced that
is the proposed amendments that will rendered the particulars of
claim excipiable.

As
to costs:

[19]
Rule 28(7) of this Court’s rules provide as follows:

‘(7) A party
giving notice of amendment shall, unless the court otherwise orders,
be liable to pay the costs thereby occasioned to any other party.”

[20] Mr Tötemeyer
who appeared for the plaintiff urged me to order the defendant to pay
the cost of the opposition even if I find that such opposition was
reasonable. Mr Tötemeyer argues that this is a matter where
unsuccessful opposition in the amendment application should follow
the event, but Mr. Heathcote who appeared for the defendant argued
that, in the event of the application being allowed there is no
reason to deviate from the provisions of Rule 28(7), that the
plaintiff should be ordered to pay all wasted costs, including the
costs of the unsuccessful opposition on the grounds that the
opposition was not unreasonable.

[21] I agree with
Mr. Heathcote that no reasons have been advanced to me for me to
depart from the provision of Rule 28(7). It appears to me that the
plaintiff must pay the costs up to and including the filing and
service of the plaintiff’s replying affidavit because that
affidavit was necessary to supplement the plaintiff’s
supporting affidavit as well as the costs wasted as a consequence of
the amendment: The defendants must pay the costs of the argument
because they have failed in their contentions.

[22] In the result
I make the following order.

22.1 The plaintiff
be and is hereby granted leave to amend the particulars of claim in
accordance with the notice given by it on 22 June 2010;

22.2 The plaintiff
is to pay the costs of the application up to and including the filing
and service of its replying affidavits and also the costs in the
action wasted as a consequence of the amendment;

22.3 The defendant
is to pay the costs (which costs include the cost of one instructing
and one instructed counsel) of the argument of this application.

.

_____________

UEITELE, AJ

.

ON BEHALF OF
THE PLAINTIFF: MR R TÖTEMEYER

INSTRUCTED BY: HD
BOSSAU & CO

ON BEHALF OF
THE DEFENDANT MR R HEATHCOTE

ASSISTED BY H
SCHNEIDER

INSTRUCTED BY: VAN
DER MERWE –GREEFF INC