Olivier v Kaizemi (CA 90 of 2004) [2005] NAHC 23 (13 July 2005);
CASE NO.: CA 90/2004
REPORTABLE
SUMMARY
MARTIN
OLIVIER versus AUGUST KAIZEMI
SHIVUTE,
JP et DAMASEB, J
13/07/2005
CIVIL
PROCEDURE: MAGISTRATE’S COURT
- Rule 55A: Amendment of Pleadings after Rule 17(2)(a) notice of
exception given; effect of.
- Dismissal of an exception that particulars of claim do not disclose
cause of action. Such an interlocutory order not amenable to appeal.
CASE NO.: CA 90/2004
REPORTABLE
IN THE HIGH COURT OF NAMIBIA
In the matter between:
MARTIN
OLIVIER APPELLANT
versus
AUGUST
KAIZEMI RESPONDENT
CORAM: SHIVUTE, JP et
DAMASEB, J
Heard on: 2004-10-20
Delivered on: 2005-07-13
_________________________________________________________________________
APPEAL JUDGMENT:
DAMASEB, J: This
is an appeal against an order of the District magistrate, Mariental,
dismissing an exception. The appellant also filed applications for
condonation for non–compliance in respect of the preparation and
making available of the appeal record, as well as for late filing of
heads of argument. None of these applications is opposed and I am
satisfied that good cause has been shown for the grant of condonation
as sought. I will therefore not deal with those applications. The
exception was heard on the 15th of March 2004 and was
dismissed some time later. The magistrate has provided written
reasons for dismissing the exception.
The brief history of the matter
is as follows. The respondent in this Court, who is the Plaintiff in
the Court below, issued summons out of the magistrates’ Court,
Mariental, praying for the following relief::
Cancellation
of the agreement;
Payment
of the amount of N$3 000-00;
Interest
at the rate of 20% per annum from September 2003 until date of full
payment;
Costs
of suit;
Alternative
relief.
The relief sought was based on
the alleged breach of an oral agreement entered into between the
parties in terms whereof the Defendant sold to the Plaintiff a
Volkswagen Beatle engine for the amount of N$3000.00. It is alleged
to be a term of the oral agreement that the engine is still in good
running condition and that it was to be used as a replacement engine
in the vehicle of the Plaintiff; that although the engine had an
oil leak it could be rectified by the replacement of an oil seal;
that the engine was taken out of the Defendant’s vehicle in a
very good condition and that it could be used for the purpose it was
intended . It is further alleged that the Plaintiff duly
‘’advanced’’ the amount of N$3 000.00 and took delivery of
the engine, but subsequently found out that the engine was damaged
beyond repair and that it was impossible to stop the oil leak. Based
on
that, it is alleged, that the
Defendant committed a material breach of the agreement in that he
misrepresented to the Plaintiff that the engine was in a good running
condition whereas it was in fact beyond repair; that the oil leak in
the engine could have been rectified by a mere replacement of an oil
seal, while it subsequently transpired that the engine block was worn
out to such an extent that it was impossible to use it; more
particularly that the condition of the engine block rendered the
replacement of the oil seal futile for purposes of fixing the oil
leak; and that the engine could be used for the purpose it was
intended for, when it was not.
It is alleged that because of
these misrepresentations the Plaintiff suffered damages in the amount
of N$3 000-00, being the amount forwarded for the engine as
purchase price.
Subsequent to the Particulars
of Claim having being filed of record, the Plaintiff on 11th
March 2004, filed a notice of amendment in the following terms:
“KINDLY
TAKE NOTICE that the Plaintiff intend to amend his particulars of
claim by inserting the following:
10. The
Plaintiff tendered the useless engine back to the Defendant and
demanded
payment of the advanced N$3 000-00 which tender the Defendant
refused.
Should
you not file notice of objection within ten days from the date hereof
the pleadings shall be deemed to be so amended.”
The notice of amendment to
which I have just referred was necessitated by a notice of exception
in terms of rule 17(2)(a) which was filed by the Defendant a quo
on the 26th day of February 2004 in which Defendant
gave notice that he wishes to except to Plaintiff’s summons on the
ground that the summons does not disclose a cause of action in that:
Plaintiff
failed to allege that he paid the alleged purchase price of N$3
000-00 to Defendant from whom he now claims it back;
Plaintiff
failed to allege that he cancelled the agreement;
Defendant
alleges that Plaintiff’s particulars of claim lack averments which
are necessary to enable him to base a claim in law for restitutio
in integrum;
Plaintiff
failed to tender that which he had received out of the alleged
agreement alternatively failed to plead facts which relieve him from
tendering as aforesaid.’’
The said ‘’notice of
exception’’ was set down by the appellant (defendant a quo) by
way of notice filed on 3 March 2004. It was then heard on 15th
March 2004 and, as I said, was dismissed.
That the order of the learned
magistrate dismissing the exception is the subject of appeal is clear
from the Notice of Appeal filed of record on the 22nd of
April 2004. It states as follows:
“The
grounds of appeal are as follows:
“1. The
learned Magistrate erred in law:
to
have had regard to the Notice of Amendment where the dies induciae
to have objected to the amendment not having expired at the time of
hearing the exception and the deeming provision contained in Rule
55A not having taken effect;
not
to have found
that
it was necessary for the Respondent to have alleged in his
particulars of claim that
the
Appellant had committed a material breach of the terms of the
contract, and that Respondent had cancelled the contract;
he
had tendered delivery of the engine to the Appellant;
that
Respondent’s Notice of Amendment was a concession that his
particulars of claim lack averments which are necessary to sustain
a cause of action;
mero
motu that the Plaintiff had confused the principles of breach of
contract with the legal concept of misrepresentation as alleged in
paragraph 7 of Plaintiff’s particulars of claim with the effect
that the particulars of claim lack averments which are necessary to
sustain a cause of action on earlier contract or
misrepresentation;”
In the above quoted notice of
appeal the only ground which is in effect not an appeal against the
dismissal of the exception is that contained in 1 (i) of the Notice
and seems to me to amount to a complaint that the magistrate erred
in having had regard to the respondent’s (plaintiff a quo) notice
of amendment at all in adjudicating upon the exception. I understand
this ground as saying that the magistrate, during the proceedings of
15 march 2004, should have proceeded on the basis that the amendment
did not exist and decided the exception on that basis. The appellant
appears to be suggesting that the issue of the amendment should then
have been dealt with later. How that could have been possible is not
immediately apparent either from the pleadings or the arguments
given on appeal; for, as the appellant says, if the magistrate had
approached the matter in that way, he should have allowed the appeal-
meaning that the notice of amendment would not have been of any
consequence.
Although there was no
appearance on the part of the respondent in this appeal at the
hearing, he filed written heads of argument prior to the hearing of
the matter. In those heads, apart from taking 4 points in limine,
he also raises the point that a dismissal of an exception is not
amenable to appeal. The respondent cites the following authority:
Zweni
v Minister of Law and Order 1993 (1) SA 523 (A); Wellington Court
Shareblock v Johannesburg City Council; Agar Properties (Pty) Ltd v
Johannesburg City Council 1995 (3) SA 827 (A); Du Plessis and Others
v De Klerk and Another 1996 (3) SA 850 (CC) at page 869 C – 869 C.
The authorities cited are in
point and I adopt the reasoning underpinning them.
The point in limine that
the dismissal of the exception in casu is not appealable needs
no detailed treatment. It has merit. The dismissal of the exception
in casu is only an interlocutory order which cannot be
appealed against; accordingly, the parts of the notice of appeal
directed at the dismissal of the exception have no basis in law
and must fail. The only issue therefore that remains for
consideration is that which I have indicated appears in 1(i) of the
notice of appeal.
This point is taken up in the
heads of argument in the following way.
“1. The
respondent’s notice of amendment was delivered on 11th
March 2004, one Court day prior to the hearing of appellant’s
exception on 15th March 2004.
2. Respondent’s
notice afforded appellant 10 days within which to object to the
proposed amendment whereafter not only in the event of no objection
being made, respondent’s particulars of claim would have been
deemed to be so amended.
3. Rule
55 A(2) of the rules of the magistrate’s court affords the parties
7 days within which to object to a propose amendment failing which
the amendment will only take effect after the expiry of the said
period.
4. In
terms of respondent’s notice, appellant had time until 26th
March 2004 (10 days), alternatively until 23March 2004 (7 days) to
object to the proposed amendment.
Provided
appellant did not object to the said amendment, same would only come
into effect on 26th March 2004, alternatively on 23 March
2004.
Appellant’s
exception in terms of Rule 17(2)(a) of the Rules of the Magistrate’s
Court was heard on 15 March 2004.
In
comparing the grounds whereupon appellant accepted to the
respondent’s particulars of claim the court a quo erroneously
based its claim as if same had already been amended at the time the
exception was heard.
In
dismissing paragraph 2 of the appellant’s exception the magistrate
stated that the Court take notice of the amendment notice to the
particulars of claim filed on the 11th March 2004 and
received by the defendant on the same day. The amendment notice
inserted paragraph 10 which reads as follows: “The
Plaintiff
tendered the useless engine back to the Defendant and demanded
payment of the advanced N$3 000-00 which tender the Defendant
refused.”
In
dismissing paragraph 3 of appellant’s exception the court a quo
dismiss same on the basis that when the summons read together with
the particulars of claim as amended the Plaintiff had made the
appropriate averments in that way to sue.
Paragraph
4 of appellant’s exception is completely disregarded with the
court a quo on the erroneous assumption that the respondent’s
particulars of claim had been amended.
By
virtue of the provisions of Rule 55 A of the rules of the
magistrates court and that stated herein before, it is submitted
that the court a quo not entitled to take cognisance of the
respondent’s notice to amend but should have applied its mind to
appellant’s exceptions to respondent’s particulars of claim as
it stood at the time of the hearing of the exception”.
The magistrate was in error,
the argument goes, in assuming, when dealing with the exception, that
the particulars of claim had been duly and properly amended. This
ground of appeal is in reality a complaint that the filing of the
notice of amendment was an irregular step. That raises the question
what did the appellant do when he had notice of the amendment, aware
that the exception had already been set down for argument. It also
requires a consideration of what actually transpired at the hearing
of the exception.
It seems to me that the
appellant is labouring under the belief that once he had set down an
exception, it was not open for the respondent to amend his
particulars of claim. I am not able to find any authority for such a
proposition, and none has been cited by the appellant.
Rule 55A of the Rules of the
Magistrates’ Court, in relevant part, provides as follows:
“(1) Any
party desiring to amend any pleading filed in connection with any
proceedings, shall give notice to all other parties of his intention
so to amend and the particulars of such amendment.
(2) Such
notice shall state that unless objection in writing is made within 7
days after the delivery of the notice to the proposed amendment, the
pleading shall be deemed to be so amended.
(3) If
any objection be made within the said period, the party wishing to
pursue the amendment shall act in accordance with the procedure
prescribed in rule 55.
…
(5) A
party giving notice of amendment shall, unless the court otherwise
orders, be liable for the costs thereby occasioned to any other
party’’.
I wish to say the following
about Rule 55A: the first is that I am unable to find any restriction
as to the timing of an amendment. It appears that an amendment may be
made at any time. The second is that any pleading may be amended.
According to Jones and Buckle The Civil Practice of the Magistrates’
Courts in South Africa , 8th ed, Vol 11 (at 411):
“It would appear that the particulars of the plaintiff’s claim
endorsed in terms of rule 6 (1) (a) constitute a ‘pleading’ which
may be amended by the procedure prescribed by rule 55A”.
I think that sub rule 5 of Rule
55A is significant for present purposes, for it seems to recognise
that the fact of the amendment may occasion inconvenience and expense
to the other party which ought to be compensated by way of an
automatic costs order, unless the Court directs otherwise.
I proceed to next consider
whether Rule 17 in terms of which the exception was taken is of any
assistance. It seems to me that if a party takes an exception (as the
appellant did) that the particulars do not disclose a cause of
action, he need not give notice to the other party to remove the
cause of complaint. (See Rule 17(2) and (5) (c).) Such notice, it
seems to me, is only required if the exception taken is that the
summons is “vague and embarrassing’’. In terms of sub
rule 5 (a) of Rule 17, however, “The Court shall not uphold any
exception unless it is satisfied that the defendant would be
prejudiced in the conduct of his defence if the summons were allowed
to stand”.
I see nothing either in the
Rule or in principle which should debar a party from applying to
amend a pleading once the other party has taken an exception on the
basis that the particulars of claim do not disclose a cause of
action. In any event such an exception is not had for the asking. The
court must be satisfied that it would work hardship to the excipient
unless upheld. As Jones and Buckle , op cit ( Vol 1), comment (at
387): ‘’applications for
amendments have been entertained and allowed even after both sides
have closed their cases and in certain cases even after the
conclusion of argument. There can, therefore, be no objection in
principle to entertaining one during the hearing of an application
for absolution. An amendment to a magistrate’s court summons, or
other pleading, may even be allowed at the appeal stage by the court
of appeal.’’
That is the very liberal
approach taken by the courts to amendments. Of course,
there was a time when the
Courts were reluctant to grant amendments and there was even a
prohibition against granting amendments ‘material to the merits of
the case’. Amendments which allowed a new cause of action were also
not allowed, but no more. The strict approach to amendments no longer
represents the law and the only consideration for a magistrate’s
court in determining whether or not to allow an amendment is that it
should not cause prejudice to the other party that cannot be cured by
an appropriate costs order even if an adjournment is given. (See
Jones and Buckle (Vol 1) at 384-385.)
In the words of Watermeyer J in
Moolman v Estate Moolman 1927 CPD 27 at 29:
‘’ …the
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is mala fide or unless such
amendment would
cause
an injustice to the other side which cannot be compensated by costs ,
in other words, unless the parties cannot be put back for the
purposes of justice in the same position as they were when the
pleadings which it is sought to amend were filed’’.
These days, an amendment is
granted even to substitute parties. (See Jones and Buckle (Vol 1) at
389 and authorities there cited.) Now what objection could there
possibly be to an amendment in casu which is aimed at perfecting a
cause of action so that the issues between the parties are properly
ventilated? I am unable to conceive of any circumstance in which the
appellant could have raised a valid objection to the amendment filed
by the respondent. I think the only purpose in proceeding to have the
exception heard after the notice to amend was filed, was to try and
gain some tactical advantage. Even if the exception were upheld,
nothing barred the respondent from issuing a fresh summons in the
matter. Now in those circumstances what prejudice could the
appellant have suffered if on the date of the hearing of the
exception he had asked for the matter to be postponed for him to
consider what to do about the notice to amend? Costs were guaranteed
to him in any event in terms of Rule 55A (5). That the exception
was heard at all on the 15th March 2004 by the court a
quo was appellant’s own doing. It did not have to be heard had
he asked for time, as he should have, to consider his position in
respect of the notice to amend. The appellant was entitled to a
postponement and in fairness to both parties that is what should have
happened. For the avoidance of doubt I need to make clear that I am
not suggesting that the Magistrate was entitled to have had regard to
the premature notice to amend. All I am saying is that justice
demanded that the exception not be proceeded with when it was.
Appellant should have asked the
matter to be postponed, with
costs to the respondent, for him to consider if he needed to object
to the amendment on any of the bases recognised in law. Having said
that, I need to say too that even if he had stood the matter down to
enable him time in terms of the dies induciae of the notice to
amend, I do not see how different the result would have been as, on
the authorities to which I have referred, a court properly directing
itself, should have allowed the amendment even if opposed. Once the
amendment was allowed, the exception, if persisted with, would
doubtless have failed, as it did.
I am satisfied that 1(i) of the
Notice of appeal is not well taken and must fail. The question that
has greatly exercised my mind is whether, in the circumstances of
this case, it would not be a more appropriate order to remit the
matter to the court a quo with the direction that the matter
be there dealt with as if the dies induciae for the appellant
to object had not yet run out and thus afford an opportunity to the
appellant to object, if he so desired, to the notice to amend on any
of the bases recognised in law. Reluctantly I have decided against
doing that for I think it will only add unnecessary costs to the
litigation as I am unable to conceive of any credible basis on which
an objection to the amendment can be upheld, however inelegantly it
is worded.
I am satisfied that this is an
appropriate case where, in its discretion, this Court must make an
adverse costs order against the appellant to mark its disapproval of
the conduct of the appellant.
In the premises it is ordered
as follows:
The appeal is dismissed. The
appellant is ordered to pay such costs of the respondent as were
incidental upon his opposition of the appeal.
_______________________
DAMASEB, J
I agree
_______________________
SHIVUTE, JP
ON
BEHALF OF THE APPELLANT: Ms L Briers
INSTRUCTED
BY: Dr Weder, Kruger & Hartmann
ON BEHALF OF THE
RESPONDENT: No appearance
INSTRUCTED BY: