CRVW Chartered Accountants and Auditors V Hamases (I 1151-2013) 2015 NAHCMD 81 (1 April 2015)
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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case No: I 1151/2013
In the matter between: CRVW CHARTERED ACCOUNTANTS & AUDITORS PLAINTIFF and
SHIRLEY HAMASES FIRST DEFENDANT THERESIA ERMEL NEIS SECOND DEFENDANT
Neutral citation: CRVW Chartered Accountants and Auditors v Hamases (I 1151/2013) [2015] NAHCMD 81 (1 April 2015)
Coram: KAUTA, AJ Heard: 9 – 12 March 2015 Delivered: 1 April 2015
Flynote – Interlocutory – Amendment of particulars of claim brought late in the proceedings and during re-examination – Reasons advanced that amendment is necessary to bring in line particulars of claim with evidence adduced – Defendants prejudice cannot be cured with a costs order.
ORDER
The application to amend the particulars of claim is refused with costs and the matter is postponed and set down for continuation of trial on 8th and 9th of April 2015 at 10h00. 2
JUDGMENT
KAUTA, AJ:[1] The plaintiff issued summons in this matter in 2013 and subsequently served it on the Defendants in May 2014. The Defendants defended this matter on the 3rd of April 2014. A case plan in terms of rule 23(3) of this court as agreed between the parties was filed on the 21 October 2014 and on the 27 th October 2014 and the case plan was made an order of court on the 10 th November 2014. As a result the court postponed this matter to the 26th January 2015 for case management. This matter appeared before me on the 26th January 2015. I made the case management report proposed by the parties, in terms of rule 24 and 25 of this court, an order of court and postponed the matter to the 16th February 2015 for a pre- trial conference. On the latter date the matter was set down for trial on the Civil Floating Roll on the 9-13 March 2015 and the parties proposed pre-trail order was made an order of court. I am going to revert later in this judgment to the full import of the pre-trail order.
[2] The plaintiff’s claim is based on a bursary agreement entered into on 17 th of November 2010, at Windhoek, in terms of which the plaintiff would grant the first Defendant a bursary to enroll for accounting studies in South Africa. It will be conducive to clarity to set out the relevant parts of the particulars of claim of the plaintiff which it intends to amend belatedly and which reads as follows:
‘5. The following were the salient express, alternative tacit, in the further alternative implied term of the agreement between the parties:
5.1 The Plaintiff would grant a bursary to First Defendant to study full-time at Rhodes University towards a B.Com and B.Com Honours or an equivalent degree and: -
5.1.1 the degree should provide the First Defendant with a Certificate in the Theory of Accounting which is recognized by the Institute of Chartered Accountants of Namibia as a prerequisite to write Part 1 and 2 of the final Qualifying Examination. 3 5.1.2 subject to the provisions of the agreement, the bursary would continue to be granted for the minimum number of academic years required to complete and obtain the degree and a Certificate of the Theory of Accounting.
5.2 The bursary to the First Defendant would be made up as follows:
5.2.1 N$50 000.00 to First Defendant for her 2011 studies; 5.2.2 N$50 000.00 to First Defendant for her 2012 studies; 5.2.3 N$50 000.00 to First Defendant for her 2013 studies; 5.2.4 N$50 000.00 to First Defendant for her 2014 studies.
5.3 The Plaintiff would be entitled to cancel the bursary agreement if the First Defendant:
5.3.1 fails any academic year and is not permitted to continue the following academic year;
5.3.2 at any stage abandons for any reason, including death, disability, emigration, the degree or any of the courses for the degree; 5.3.3 directly or indirectly expresses or implies reservations regarding working for the Plaintiff after the completion of the degree;
5.3.4 generally, the attitude and/or performance and/or attendance of First Defendant at the University, in the opinion of Plaintiff, that First Defendant is unlikely to complete or obtain the degree within the minimum period;
5.3.5 is guilty of misconduct or inappropriate conduct that makes her unsuitable as bursary holder and/or future employee at the absolute and sole discretion of Plaintiff.
5.4 The First Defendant was required, for each academic year, within 20 days after each mid-year and year-end examination results that have become available, to provide Plaintiff with the results in writing or by email. 4 5.5 If the First Defendant breaches any terms and/or conditions of the bursary agreement:
5.5.1 the Plaintiff may cease to make further payments in terms of the agreement.
5.5.2 the First Defendant shall be liable to repay the full value of the bursary already awarded plus interest at the prime lending rate to Plaintiff within 20 (twenty) working days as from the breach.
6. The First Defendant is in breach of the bursary agreement in that:
6.1 she failed her year-end 2012 examination;
6.2 she decreased her chances of passing her third year examination by postponing two of her First/Second Year subjects being Audit and Taxation to the third year. Plaintiff is of the view that if she is unable to complete these two subjects during the years prescribed, and that she will not be able to complete these subjects in her third year as well as all the third year subjects thereby reducing her chances of successfully passing her third year examination. The University also expressed their concerns regarding the above and requested the First Defendant to meet with the Dean of the University;
6.3 no longer will be in the position to obtain her degree within the minimum prescribed period;
6.4 she failed to deliver each mid-year and year-end examination results to Plaintiff in writing or by email;
Alternatively
6.5 she repudiated the bursary agreement by indicating to the Plaintiff her refusal to comply with the terms of the bursary agreement and by accepting a new bursary from PriceWaterhouseCoopers, Windhoek, which repudiation the Plaintiff hereby accepts.
7. As a result of the First Defendant’s breach as aforesaid, the Plaintiff cancelled the bursary agreement and discontinued its payments in respect of the bursary agreement.’ 5
[3] I do not intend to set out the entire plea of the defendants, save to state that the defendants did not take issue with paragraphs 1, 2, 3, 4, and 5 of the plaintiff’s particulars of claim. However the defendants pleaded to paragraph 6 of the plaintiff’s particulars of claim as follows:
‘ The contents thereof are denied, as specifically traversed and denied and the Plaintiff is put to the strict proof thereof, in amplification thereof the First Defendant pleads thereto as follows:
3.1 First Defendant passed here subjects and with respect to Accounting 1 and Commerce, she qualified for supplementary and which examination she wrote in January 2013 and duly passed same, as per annexure “A”.
3.2 The content thereof is denied. First Defendant pleads that the subjects Audit and Taxation are third year subjects as per the curriculum for Bachelor of Commerce Degree (Accounting) as is indicated in annexure “B” hereto.
Further Plaintiff’s view is premature and uniformed. The curriculum and the subjects offered during each year for the Bachelor of Commerce (Accounting) is per annexure “B”.
It is further denied that First Defendant was requested to a meeting to discuss concern regarding her academic by the Dean of the University.
3.3 The content hereof are denied and considered premature on the part of the Plaintiff. First Defendant was duly registered as 3rd year student in February 2013 as per annexure “C”.
3.4 The content thereof is denied and all results were duly emailed to the Plaintiff as per annexure “D”.
3.5 Contents thereof are denied as Plaintiff on or about 20th February 2013 indicated to First Defendant that she may look for other, financiers, as per email “E”.
Further Plaintiff terminated any further financial assistance to Plaintiff on 19th February 2013 per annexure “F”, specifically paragraph 2.1 of annexure “F” hereof.’ 6
[4] It is important to note at this stage that the parties were at all times from inception of this matter represented by counsel. It is equally important to set out the relevant parts of the pre-trial order which was proposed by the plaintiff and defendants in terms of Rule 26 of the Rules of this Court and made an order on the 16th February 2015. It, inter alia, reads as follows:
‘ The parties having considered the issues in Rule 26, jointly file the following proposed pre-trial order with reference to the applicable sub-rules.
1. ISSUES OF LAW AND FACT TO BE RESOLVED
Subject to the pleadings filed of record –
1. Whether or not the First Defendant is in breach of the following terms of the bursary agreement:
1.1 First Defendant failed her year-end 2012 examination;
1.2 First Defendant decreased her chances of passing her third year examination by postponing two of her First/Second years subjects being Audit and Taxation to the third year;
1.3 Whether Plaintiff’s view that first Defendant would not be able to complete Audit and Taxation during the prescribed year was correct;
1.4 Whether the plaintiff’s view that the first defendant would not be able to complete Audit and Taxation in her third year examinations;
1.5 Whether the plaintiff’s view as set out in 1.3 and 1.4 above reduced the First defendant chances of successfully passing her third year examinations;
1.6 Whether the University expressed concerns about the plaintiff’s view as set out in 1.3; 1.4 and 1.5. 7 1.7 Whether the Dean of the University requested to meet with the First Defendant regarding the Plaintiff’s view as set out in 1.3; 1.4 and 1.5 above;
1.8 Whether the First Defendant will no longer be in a position to obtain her degree within the prescribed period;
1.9 Whether the First Defendant failed to deliver her examination results to the Plaintiff in writing or by email timeously or at all;
1.10 Whether the First Defendant repudiated the bursary agreement;
1.11 Whether the defendants are liable to the Plaintiff as claimed.
2. RELEVANT FACTS NOT IN DISPUTE
1. The identity of the parties;
2. That the First Defendant entered into a bursary agreement with the Plaintiff and the Second Defendant signed as surety.
3. That Second Defendant is liable jointly and severally with the First Defendant as surety and co-principal debtor once First Defendant’s indebtedness is established.
4. The amount claimed by Plaintiff is not disputed.’
[5] When the matter was called on the 9th of March 2015, the court was called upon to resolve the issues of law and fact in paragraph 1 of the pre-trail order and no other issue. The plaintiff called Mr Colyn Murray Hendriks, who would have been its only witness.
[6] The evidence of Mr Hendriks can safely be summarised as follows: He is the partner responsible for the day-to-day human resources within the plaintiff. On 17 November 2010, the plaintiff and the first defendant entered into a bursary agreement in terms whereof the first defendant will enroll to study B.Com and B.Com 8 Honours or the equivalent degree in South Africa. The terms of the bursary agreement are not an issue between the parties. His testimony was further that in his opinion the first defendant performed academically very poor in the first and second year. She failed in 2012 and emailed her results only after the 7th January 2013 when she passed her supplementary examinations. Accordingly he formed an opinion because of his experience that the first defendant will be unable to pass the third year of her studies at the University of Rhodes. As a result, and relying on clause 2.3 of the agreement, he suspended the bursary agreement between the plaintiff and the first defendant and gave her the following options:
‘Repayment of the full bursary value, plus interest at prime lending rate on/or before 20 March 2013. Total amount outstanding (including interest) N$208,780.00 (Two Hundred and Eight Thousand, Seven Hundred and Eighty Namibia Dollars).
Or
Re-payment of a portioned interest amount of N$500 (Five Hundred Namibian Dollars) per month as from 1 February 2013 to 31 December 2013, subject to the following provisions:
(a) the student commence employment with CRVW on/not later than 5 January 2014 and for a minimum period of five years, as per paragraph 4.1.2 of the Bursary Agreement; (b) successfully complete the required CTA degree through UNISA. (c) Please take note that all other bursary terms will remain applicable if option 2 is taken.’
[7] Mr Hendriks was adamant that he relied on clause 2.3 to suspend the bursary agreement. When he was pertinently asked by the court and Ms Shifotoka in cross- examination he confirmed that the bursary agreement was suspended and not cancelled. Clause 2.3 of the bursary agreement reads as follows:
7.1 ‘CRVW may discontinue or suspend the bursary, if the STUDENT:
7.1.1 is not successful for any academic year of study, such that she is not permitted to continue with the following academic year of study for the degree; or 9 7.1.2 at any stage abandons for any reason, including death, disability, emigration, the degree or any of the courses for the degree; or
7.1.3 directly or indirectly expresses or implies reservations regarding working for the CRVW after the completion of the degree; or
7.1.4 fails to comply with the provisions of this agreement; or
7.1.5 generally, the attitude and/or performance and/or attendance at the University of the STUDENT indicates, in the opinion of CRVW, that she is unlikely to complete or obtain the degree within the minimum the minimum period; or
7.1.6 makes herself guilty of misconduct or inappropriate conduct that makes her unsuitable as bursary holder and/or future employee at the absolute and sole discretion of CRVW.’
[8] After the completion of cross-examination and during re-examination Adv Campbell gave oral notice to amend the plaintiff’s particulars of claim. Ms Shifotoka, sought time to consider whether to object or not. I granted the time sought and adjourned the matter for a day. When the matter resumed Adv Campbell, had rightly deemed it fit file the following notice of amendment:
‘ PLEASE TAKE NOTICE that plaintiff intends to move for an amendment to its particulars of claim in terms of rule 52(9) at the hearing of this issue on 10 March 2015 at 11:00 as directed by the Managing Judge.
1. By deleting the word ‘cancel’ where it appears in paragraph 5.3 thereof and by substituting it with the words ‘discontinue or suspend’.
2. By inserting the following words after the word ‘agreement’ where it appears in paragraph 5.5 thereof:
‘and/or makes herself guilty of conduct as enumerated in paragraphs 5.3 and 5.4 supra:’
3. By deleting the words ‘is in breach of the bursary agreement in that‘ where it appears in paragraph 6 thereof. 10 4. By deleting the word ‘she’ where it appears as the first word in the sentence in paragraph 6.1, 6.2, 6.4 and 6.5 thereof.
5. By deleting the word ‘breach’, ‘cancelled’ and ‘agreement’ where it appears in paragraph 7 thereof and by inserting the words in bold causing it to read as follows:
‘ As a result of the first Defendant’s conduct as aforesaid, Plaintiff suspended the bursary and discontinued its payments in respect of the bursary agreement.’
TAKE NOTICE FURTEHR THAT the proposed Amended Particulars of Claim are annexed hereto as annexure “A”.
TAKE FURTHER NOTICE THAT if the defendants wish to object to the proposed amendment, they are required to inform the plaintiff as soon as is reasonably possible prior to the hearing of this matter of their grounds for such objection.’
[9] The relevant parts of the proposed amended particulars of claim read:
‘5. The following were the salient express, alternative tacit, in the further alternative implied term of the agreement between the parties:
5.1 The Plaintiff would grant a bursary to First Defendant to study full-time at Rhodes University towards a B.Com and B.Com Honours or an equivalent degree and: -
5.1.1 the degree should provide the First Defendant with a Certificate in the Theory of Accounting which is recognized by the Institute of Chartered Accountants of Namibia as a prerequisite to write Part 1 and 2 of the final Qualifying Examination.
5.1.2 subject to the provisions of the agreement, the bursary would continue to be granted for the minimum number of academic years required to complete and obtain the degree and a Certificate of the Theory of Accounting.
5.2 The bursary to the First Defendant would be made up as follows: 11
5.2.1 N$50 000.00 to First Defendant for her 2011 studies; 5.2.2 N$50 000.00 to First Defendant for her 2012 studies; 5.2.3 N$50 000.00 to First Defendant for her 2013 studies; 5.2.4 N$50 000.00 to First Defendant for her 2014 studies.
5.3 The Plaintiff would be entitled to discontinue or suspend the bursary agreement if the First Defendant:
5.3.1 fails any academic year and is not permitted to continue the following academic year;
5.3.2 at any stage abandons for any reason, including death, disability, emigration, the degree or any of the courses for the degree;
5.3.3 directly or indirectly expresses or implies reservations regarding working for the Plaintiff after the completion of the degree;
5.3.4 generally, the attitude and/or performance and/or attendance of First Defendant at the University, in the opinion of Plaintiff, that First Defendant is unlikely to complete or obtain the degree within the minimum period.
5.3.5 is guilty of misconduct or inappropriate conduct that makes her unsuitable as bursary holder and/or future employee at the absolute and sole discretion of Plaintiff.
5.4 The First Defendant was required, for each academic year, within 20 days after each mid-year and year-end examination results that have become available, to provide Plaintiff with the results in writing or by email.
5.5 If the First Defendant breaches any terms and/or conditions of the bursary agreement and/or makes herself guilty of conduct as enumerated in paragraphs 5.3 and 5.4 supra:
5.5.1 the Plaintiff may cease to make further payments in terms of the agreement. 12
5.5.2 the First Defendant shall be liable to repay the full value of the bursary already awarded plus interest at the prime lending rate to Plaintiff within 20 (twenty) working days as from the breach.
6. The First Defendant:
6.1 failed her year-end 2012 examination;
6.2 decreased her chances of passing her third year examination by postponing two of her First/Second Year subjects being Audit and Taxation to the third year. Plaintiff is of the view that if she is unable to complete these two subjects during the years prescribed, and that she will not be able to complete these subjects in her third year as well as all the third year subjects thereby reducing her chances of successfully passing her third year examination. The University also expressed their concerns regarding the above and requested the First Defendant to meet with the Dean of the University;
6.3 no longer will be in the position to obtain her degree within the minimum prescribed period; 6.4 failed to deliver each mid-year and year-end examination results to Plaintiff in writing or by email;
Alternatively
6.5 repudiated the bursary agreement by indicating to the Plaintiff her refusal to comply with the terms of the bursary agreement and by accepting a new bursary from PriceWaterhouseCoopers, Windhoek, which repudiation the Plaintiff hereby accepts.
7. As a result of the First Defendant’s conduct as aforesaid, the Plaintiff suspended the bursary agreement and discontinued its payments in respect of the bursary agreement.’
[10] Mr Ulrich Etzold, the instructing legal practitioner of plaintiff, filed an affidavit, on the 10th March 2015, explaining the reasons for this late amendment. He states that he personally and properly consulted with Mr Hendriks when he drafted the particulars of claim. He further gave a copy of the draft particulars of claim to Mr 13 Hendriks for his consideration and input. He cannot state with certainty but postulate that the misunderstanding may have occurred in that Mr Hendriks may have equated suspension to cancellation. Mr Etzold is of the opinion that the proposed amendment must be allowed to bring the pleadings in line with the evidence already led and cross-examined on and that any prejudice of the defendants can be off-set with an appropriate order of costs as this will serve in the best interest of justice because the matter between the parties will be adjudicated on the real issues as opposed to fiction.
[11] On the 11th March 2015, the defendants objected to the proposed amendment and raised a point of law, of locus standi. The objections raised were that the plaintiff is belatedly introducing a new cause of action and that the prejudice to be suffered by the defendants cannot be cured with a costs order because the new cause of action sought to be introduced has become prescribed or excipiable.
The law
[12] The full bench I A Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC1 at paragraph 55 set out the law with respect to amendment sought late in the proceedings with the advent of case management. The Judge President, writing for the full Court, stated that:
‘[55] Regardless of the stage of the proceedings where it is brought, the following general principles must guide the amendment of pleadings: Although the court has a discretion to allow or refuse an amendment, the discretion must be exercised judicially. An amendment may be brought at any stage of a proceeding. The overriding consideration is that the parties, in an adversarial system of justice, decide what their case is; and that includes changing a pleading previously filed to correct what it feels is a mistake made in its pleadings. Although concessions made in a pre-trial order are binding on a party, being an admission, they can be withdrawn on the same basis as an admission made in a pleading. Facts admitted in case management orders are not that easily resiled from than those in pleadings: that is so because a legal practitioner is presumed, because of the new system which requires them to consult early and properly, to have done so and committed a client to a particular version only after proper consultation and instructions. That presumption entitles the opponent to rely on undertakings made by the opponent and to plan its case accordingly. A litigant seeking the amendment is craving an indulgence and therefore must offer some
1 (I 601 – 2013 & I 4084-2010) (2014) NAHCMD 306 (17 October 2014) 14 explanation for why the amendment is sought. Amendments take different forms and vary from the simple and obvious typographical or arithmetic, to the more substantial such as change of front or withdrawal of an admission. Given the latter reality, one cannot apply the same test to proposed amendments. The case for an explanation why the amendment is sought and the form it will take will also be determined by the nature of the amendment. The less significant the amendment, the less the formality for the explanation. For example, why should a typographical error be explained on oath? The more substantial an amendment, the more compelling the case for an explanation under oath. A reasonably satisfactory explanation for a proposed amendment is strongest where it is brought late in proceedings and or where it involves a change of front or withdrawal of a material admission. In the latter instance, tendering wasted costs or the possibility of a postponement to cure prejudice is not enough. The interests of the administration of justice require that trials proceed on dates assigned for the hearing of a matter. If the proposed amendment is justified on the ground that it arose from a mistake, the mistake relied on must be bona fide and will only be allowed if good grounds exist for allowing the amendment. Although a litigant does not itself have to explain on oath the basis of an alleged mistake necessitating an amendment, its failure to do so may in an appropriate case be held against it if the explanation by the legal practitioner does not disclose good grounds for the alleged mistake or the necessity for the amendment. An amendment that is not opposed or one that is minor will invariably be granted. What is the court to do when a party says: ‘well, true I said that in the past; I am sorry but it was said in error: My case is in fact the opposite of what I earlier stated; alternatively; I wish to completely change the basis of my case? A court cannot compel a party to stick to a version either of fact or law that it says no longer represent its stance. That is so because a litigant must be allowed in our adversarial system to ventilate what they believe to be the real issue(s) between them and the other side. The difficulty arises if the change of front is opposed by the other side. In that situation the change of front becomes the real issue between the parties; for although the court has no power to hold a party to a version that it seeks to disown, it is entitled to hold against it, as being an afterthought, the fact that it has withdrawn late in the day a concession consciously and deliberately made or to change a front persisted with for considerable time in the life of the case. The explanation offered for the proposed change, or lack of it, may well go to credibility and the overall probabilities of the case. The court has the following avenues open to it in such a case: (a) if a party has failed to provide an explanation on oath or otherwise in circumstances where one was called for, the proposed amendment must be disallowed. (b) If a party provides an explanation that is not reasonably satisfactory or is lacking in bona fides, the court may disallow the amendment especially if it is opposed and has the potential to compromise a firm trial date. (c) Where the court is inclined to allow an amendment although opposed, it must defer it for consideration together with the merits if the fact of the amendment becomes the real issue between the parties. Whether or not the alleged mistake necessitating the amendment is genuine; or put another way: whether or not the alleged mistake necessitating the 15 amendment is bona fide and not an afterthought may in certain circumstances become the real issue between the parties. A court may well come to the conclusion that it is an afterthought on account of its lateness and the deliberate manner and surrounding circumstances in which it was originally made and persisted with. It is then bound up with the probabilities of the case. A very substantial change of front or withdrawal of a concession previously made in such circumstances becomes the real dispute between the parties. The appropriate course then is to defer the proposed amendment and, through cross examination by the opposing side, determine the bona fides of the withdrawal when, ultimately, it decides the probabilities. In that process the truthfulness or otherwise of the version of the party making a withdrawal becomes no less an important consideration. Change of front and wholesale amendment of pleadings and pre-trial orders, especially late in proceedings may, in an appropriate case - especially when it is not properly explained - undermine the credibility of a party’s version. If that looms as a possibility or a reasonable inference from the affidavits relating to the opposed amendment, the court must consider deferring the proposed amendment and require the party to deal with it together with the merits. This approach has the advantage that the party opposing the amendment can though cross-exanimation challenge the bona fides of the alleged mistake and demonstrate that there in fact was no mistake in the way the matter was pleaded and that the claim or plea as it stood accords with the respondent’s version of events and that it should, for that reason, succeed on the disputed issues as the probabilities are in its favour. (d) The imperative of speedy and inexpensive justice may in an appropriate case justify the denial of an amendment if it was necessitated by demonstrably poor preparation or lack of practitioner diligence which will have the effect of frustrating the early disposal of the case and therefore the administration of justice. (f) The discretion to disallow late amendments must not be exercised punitively, and each case must be considered on its facts, balancing the need to do justice between the parties by ensuring that the court allows them to ventilate the real issues between them, and the interests of the administration of justice. It has become common practice in our courts for parties to bring substantial amendments on the eve of trial, fully aware it is going to be opposed, and in that way effectively secure a postponement. I cannot think of a practice that is more pernicious and subversive of the proper and orderly administration of justice than that. Such applications must therefore be entertained only in the rarest of cases. As the authors of Herbstein & van Winsen correctly argue2, the notice procedure3 is in any event not applicable to such applications and parties must not be allowed to use it to scupper set down trials. Rather, if a party contemplates late amendment or an amendment that is likely to compromise trial dates, it must, after informing the opponent in writing about the details of the proposed amendment, seek directions from the managing judge in terms of rule 32(4)-(10), for the court to allow the bringing of the
2 At p. 676.
3 In the old rules contained in rules 28(1)–(6), and in the new rules contained in 52(1) –(9). 16 amendment. The managing judge may, in line with the approach we set out in this judgment and after entertaining representations from the parties, refuse to entertain the proposed amendment; or he or she may give directions for the filing of papers for him or her to determine the proposed amendment, and before the trial actually takes place.’
Submissions of the parties
[13] Adv Champbell counsel for the plaintiff submitted, among others, that the court has a discretion whether to grant or refuse an amendment and that the applicant seeking an amendment must show that the amendment raises a tribal issue. She further submits that the modern tendency lies further in favour of granting an amendment to facilitate the proper ventilation of the dispute between the parties. She concedes that if an amendment is not sought timeously, the reason of delay must be given.
[14] Plaintiff’s counsel submits that the crux of the plaintiff’s case emerged during oral evidence is that:
14.1 ‘The plaintiff was entitled to, by virtue of the provision of clause 2.4 of the bursary agreement, suspend or discontinue, for whatever reason (and in particular in terms of clause 1 and 2.3 of the bursary agreement) and plaintiff may cease to make further payments to the bank in terms of the bursary agreement and the student (first defendant) shall be liable to repay the full value of the bursary already awarded, plus interest.
14.2 Clause 2.3 then lists a number of circumstances that would entitle plaintiff to discontinue or suspend the bursary under clauses 2.3.1 to 2.3.6.
14.3 Plaintiff relies on clause 2.3.5, which provides that ‘generally, the attitude and/or performance and/or attendance at the University of the STUDENT indicates, in the opinion of CRVW, that she is unlikely to complete or obtain the degree within the minimum period’.”
[15] Adv Champbell argues that the defendants do not dispute the bursary agreement or the terms thereof and because the defendants agreed to amend the pre-trial order at the commencement of the trial to the following terms: ‘Whether or not plaintiff was entitled to discontinue or suspend it’s funding to Defendant due to view plaintiff formed in terms of clause 2.3.5 of the bursary agreement?’. She 17 submits there is no prejudice if the proposed amendment is allowed because the defendants should have anticipated it.
[16] Ms Williams represented the defendants in opposition to the application to amend. She made two submissions, one relating to locus standi and two that the amendment will introduce a new cause of action and is therefore prejudicial to the defendants. The submission relating to locus standi is premised on the supposition that since Mr Hendriks was testifying in chief his lawyers could not have consulted him for instructions to bring an application for amendment. Hence the plaintiff’s lawyers had no mandate to bring the application to amend the pleadings. As to the second ground she argued that there is a vast difference between suspension and cancellation of an agreement in law. Accordingly, the relief sought by the plaintiff is based on a debt and ‘it is clear that in determining when a debt arises and when it becomes due, different concepts are concerned. A distinction needs to be made between ‘the coming into existence of the debt on the one hand and recoverability thereof on the other’.4 As I understand this argument, the amendment will introduce the basis of the claim to be a debt which has prescribed.
[17] It is apposite to look at the reasons for the amendment and see whether one can balance the interest of the parties. The starting point in this matter is really the plaintiff’s letter dated 19 February 2013, admitted to evidence as exhibit “G”. That letter was written by Mr Hendriks to the defendants. The particulars of claim were based on this letter. Mr Etzold, apart from speculating to the reasons why there was a misunderstanding between him and Mr Hendriks gives no cogent reason why and how the misunderstanding between them arose. That’s telling. If one reads the letter of the 19th of February 2013 the true reason emerges at the heading of paragraph 1 thereof. In that letter the heading is “breach of contract” but the conclusion of the plaintiff at paragraph 2.1 was that it decided not to grant funding for the year 2013 onwards and offered two options to the defendants. The evidence of Mr Hendriks is consistent with this letter in that, he at no time cancelled the agreement but suspended it as he was entitled to do and requested the defendants to make an election which option they chose. The deadline for the defendants to elect one of the options was the 5th of March 2013. From Mr Hendriks evidence the latter date passed without the defendants choosing one of the two options.
4 (List v Jungrs 1979 (3) SA 106 at 121 C-D)” 18 [18] The inference is irresistible that when Mr Hendriks met Mr Etzold, the latter concluded that in law the bursary agreement was cancelled. That must be the true reason why the particulars of claim were drafted and served in that manner. It is not surprising that Mr Etzold, the instructing counsel, realized in court that he misunderstood Mr Hendriks instructions. At no stage during the testimony of Mr Hendriks did he appear confused. He, eloquently and dispassionately while conceding, freely testified that he suspended the bursary agreement because in his opinion the first defendant will not complete her studies timeously. The opinion of Mr Hendriks were proven correct all be it ex post facto, when the first defendant failed her third year of studies which were funded by PriceWaterHouseCoppers.
[19] Is it in the interest of justice for a plaintiff to amend the particulars of claim in re-examination to conform with testimony of his only witness? I think not, because that will mean that the plaintiff can avoid with impunity an application for absolution and the resultant costs order. It is not in dispute that the application for amendment has been brought very late in this trial. The prejudice to the defendants cannot be cured with costs order if potentially the amendment will introduce a cause of action that may have prescribed. I make no decision with respect to the issue of prescribtion. It is trite law that the function of pleadings are threefold: (a) to ensure that both parties know what are the points of issue between them, so that each party knows what case he has to meet; (b) to assist the court by defining the limits of the action ; (c) it places issues raised on record.5 It is not in the interest of justice in my view to grant the proposed amendment because indirectly it will amount to granting and application for postponement to enable the defendants to plead thereto and reopen the pleadings.
[20] It is trite law that upon breach of contract, an election has to be made by one of the parties to the contract. That election is generally to enforce the contract or cancel it and claim for damages. In this matter the plaintiff suspended the bursary agreement and gave two options to the defendants which lapsed on the 5th of March 2013. The options given to the first defendant was to pay back the money received or for her to agree to an employment with plaintiff, continue with her studies part-time and use her salary to pay off a modicum amount. I do not want to express an opinion with respect to whether the amendment sought is excipiable or not because such an application is not before me.
5Daniels, H.2002. Becks Theory and principals of pleading in civil Actions (sixth edition).Durban: LexisNexis, p 43- 44. 19
[21] I am not satisfied with the reasons advanced by the plaintiff for the belated proposed amendments and consequently refuse the application for amendment with costs.
Order [22] The application to amend the particulars of claim is refused with costs and the matter is postponed and set down for continuation of trial on 8th and 9th of April 2015 at 10h00.
______P KAUTA Acting Judge
Appearances:
For Plaintiff: Y Champbell (Assisted By U Etzold Instructed by: Etzold-Duvenhage, Windhoek.
For Defendants: R Williams ( E Shivotoka) Instructed by: Conradie & Damaseb, Windhoek.