COURT OF SWAZILAND
the matter between:
INVESTMENTS (PTY) LTD DEFENDANT
THE PLAINTIFF MR. FLYNN
THE DEFENDANT ADV. D. SMITH
a combined summons dated 13th February 2003, plaintiff sued the
defendant and prayed for the following prayers:-
of the sum of E350,000-00;
thereon at the rate of 9% per annum calculated from the 30th
to date of final payment;
and/or alternative relief.
plaintiff's cause of action arises from, and this is common cause, a
deed of sale by and between the parties and duly signed by them.
deed of sale is part of the proceedings and filed of record as "A".
The date reflected on "A" is the 23rd August 1996.
the purpose of this judgment reference will be made to certain
clauses of "A" which are relevant for the purposes of this
4 of plaintiffs particulars of claim states the following:-Paragraph
to the conclusion of the sale and with the intention of inducing
plaintiff to purchase the property the defendant represented, by its
agent Douglas Makhubu, orally represented to the plaintiff that South
Easterly boundary of the said property was a road."
on the truth of the representation which was material to the sale,
plaintiff purchased the property and paid the defendant the purchase
price of E350.000-00."
South Easterly boundary of the property is not the road".
reason of the foregoing and on discovering that the property did not
extent to the road the plaintiff, during June 2001 orally cancelled
the agreement of sale."
emerged during the hearing of this matter that defendant's legal
representative was already aware that the particulars of claim as
couched by the plaintiff especially considering the contents of
clauses 12 and 14 of the agreement plaintiffs particulars of claim
did not disclose a cause of action. Clause 12 of "A" is a
voetstoots clause and clause 14 non variations, alterations,
modifications or suspension
INTERNATIONAL TOBACCO COMPANY OF SOUTH AFRICA LIMITED VS WOLLHEIM &
OTHERS 1953(2) SA @ 613 A
Centeivers CJ concurring remarked. [I]f it can be shown on exception
that a declaration discloses no cause of action, an exception on this
ground should be allowed; if the exception is that the declaration is
vague and embarrassing, that fact should be shown, at any rate for
purposes of his plea, that the defendant is substantially embarrassed
by vagueness or lack of particularly, it equally should be allowed."
the 26th May 2003 defendant gave a notice of intention to amend in
terms of Rule 28 of the Rules of this Court. The amendment was a
special plea and not an exception. But as Mr. Flynn in his heads of
argument has indicated, it appears defendant did not persist in
seeking the amendment. Mr. Flynn also stated that the intended
amendment was introduced as a special plea which would have raised
issues which ought to have been raised by way of an exception. The
court in its ruling in the objection in leading viva voce evidence in
contradiction to the contents of annexure did not specifically
addressed itself to the application for an amendment but merely dealt
with the pleadings as they stand.
further agree with Mr. Flynn for the plaintiff that Mr. Smith's
opening remarks at the inception of the trial that no purpose would
be served in proceeding with the trial on the merits as the
plaintiffs particulars of claim were fatally defective in that same
did not disclose a cause of action was not in accordance with the
rules. Mr. Smith urged the court of dismiss the matter even before
hearing the merits. The court found in favour of the plaintiff and
the matter proceeded to the merits.
was only when the plaintiff sought to introduce viva voce evidence in
violation of annexure "A" that an objection by Mr. Smith
was made; and the court ruled in favour of the defendant. Thereafter
Mr. Flynn did not persist in leading the evidence relating to
annexure "A" which in terms of the courts ruling would be
contrary to clause 11 and 14 of annexure "A". I have been
referred to GOVERNMENT BS VIANINC FERRO CONCRETE PIPES (PTY) LTD 1941
AD 43 @ 47 and a number of other authoritative South African cases. I
am convinced that the ruling I made disallowing the admissibility of
the intended evidence by plaintiff was in my considered view correct
I turned down an application by Mr. Flynn to amend plaintiff's
particulars of claim at an advanced stage of the trial. This
application for an amendment sought to introduce an element of a
fraudulent misrepresentation which was not there in the original
particulars of claim. In my view this amendment if allowed would
introduce a new cause of action to the prejudice of the defendant.
The plaintiff could not take its case any further. It rested its
problem which then arose was whether in all the circumstances of the
case a proper verdict would be one of absolution from the instance
with costs in favour of the defendant or a dismissal of the case for
the plaintiff with costs.
counsel for the litigants agreed to file further heads of argument
within 14 days to deal specifically with an appropriate order as to
costs as indeed an appropriate finding by this court. This, Mr. Smith
on behalf of the defendant has done. I have however not received any
submissions from plaintiffs counsel. Considering the manner in which
Mr. Smith sought to apply for an amendment to include a special plea
instead of an exception I am inclined to avoid any speculation on
what plaintiff would have done had a proper procedure been followed
by Mr. Smith on behalf of defendant.
an absolution from the instance is granted. I am of the view that
both litigants are at large to again reinstate the matter in any form
they each deem fit.
all the circumstances of this case, I find that a proper order is one
of absolution from the instance. I do not find this case to be one
where punitive costs should be ordered; there being a very strong
possibility that this is not the end of the matter. However,
considering the dilatoriness on the party of the plaintiff's
instructing attorneys I am of the view that the costs be those of an
ordinary scale but these costs to include those of counsel for the