Swaziland Building Society v One Stop (Pty) Ltd and Others (1262/10) [2011] SZHC 55 (25 March 2011);

 

IN THE HIGH COURT OF SWAZILAND

 

 

HELD AT MBABANE                                                 CASE NO.  1262/2010

 

In the matter between:

 

SWAZILAND BUILDING SOCIETY                        APPLICANT

 

VS

 

ONE STOP (PTY) LIMITED                                                RESPONDENT

IRENE BASTOCK

CASSANDRA BASTOCK

 

 

 

CORAM                                                                       OTA J.

 

 

 

 

 

 

 

 

 

 

[1]    A background of this case is that the plaintiff sued out a combined summons against three Defendants namely:- One Stop (Pty) Limited, Irene Bastock and Cassandra Bastock. It is on record that attached to the particular of claim are several annexures including the following:- copies of Deeds of suretyship annexures D and E. respectively.  The plaintiff subsequently withdrew the claim against the 3^rd defendant.  The record further demonstrates, that after the defendants delivered a notice of Intention to defend, the plaintiff commenced a summary judgment application against the 1^st Defendant, praying inter alia the following reliefs.

 

1. Payment of the sum of E 712, 232-87
2. Interest on the said sum of E712,232-87 at the rate of 9% per annum calculated from the date of summons to date of final payment.
3. An order declaring the fixed property, being Portion 1 of Extension No. 194 situate in the Township of Manzini, District of Manzini, Swaziland Mortgaged by Mortage Bonds No  693/2001 and 36/2006 to be executable.
4. Costs of suit on the scale as between attorney and own client including collection commission.
5. Further and / or alternative relief.

 

[2]    The plaintiff’s case in a nutshell, is that it agreed to lend to the 1^st defendant the sum of E285,000-00 in respect of which the 1^st defendant executed the first mortgage bond bearing number 693/2001, as per annexure A.  That as a continuing covering security for the said sum, an additional amount of E142,000-00 was advanced to the 1^st defendant.  This continuing security was also subject to the terms and conditions contained  in annexure A.  That the 1^st defendant obtained another loan from the plaintiff in the sum of E600,000-00, in respect of which the 1^st defendant executed a second bond number 36/2006, as contained in annexure B.  That as a continuing covering security for the loan of E600,000-00, an additional amount of E300,000-00 was advanced to 1^st defendant by the plaintiff, which is also subject to the terms and conditions contained in annexure B.  That the 2^nd and 3^rd defendants executed written deeds of suretyship in terms of which they bound themselves as sureties and as principal debtors with the 1^st defendant, as shown in annexures D and E.  That the 1^st defendant defaulted in payment of the installments agreed towards  repayment of the loan, leading to the present action.

 

[3]    The 1^st defendant opposed this application with an affidavit resisting same, sworn to by Irene Bastock, 2^nd defendant, in the main claim, who is described therein as the Managing Director of the 1^st Defendant company .  Suffice it to say that in paragraphs 5.2 to 5.5 of the said affidavit, the deponent made copious references to annextures D and E exhibited to the plaintiff’s particulars of claim, contending, that these annexures are not Deeds of suretyship, as is alleged in the particulars of claim, but are merely copies of the forms of offer with their respective forms of Acceptance, with respect to the two (2) loan agreements subject matter of this application.  The deponent further denied that she and the 3^rd defendant signed annexure D, alleging that same was signed by her late husband.  She accepted signing annexure E, but denied that same is a Deed of suretyship.  In paragraph 6.1, she admitted that in 2001 a loan in the amount of E 285, 500-00 was advanced to the plaintiff upon the terms and conditions stipulated in annexure E.

 

[4]    The record further demonstrates, that the plaintiff filed a Replying Affidavit in which it made references to annexture E.  It is on record that before the foregoing summary judgment application could be heard, that the plaintiff commenced an application by way of Notice of Amendment in terms of Rule 28 of the rules of this court, praying for an amendment of its particulars of claim as follows:-

 

1. By removing annexures ‘‘D’’ and ‘‘E’’ attached to the particulars of claim and replacing them with the attached Deed of suretyship marked annexure ‘‘D  I’’.

 

[5]    It is the foregoing notice of amendment that presently vexes the court. The Defendants filed a notice of objection to plaintiff’s amendment premised upon the following grounds:-

 

1. The proposed amendment is prejudicial to Defendant’s defence to summary judgment which already has been filed in an Affidavit Resisting Summary judgment.
2. To allow the amendment would be tantamount to affording the plaintiff a chance to amend its claim against the Defendants without giving the Defendants a chance to resist summary judgment on the new set of papers.

 

[6]    When this matter served before me for argument on the 28^th of February 2011, Defence counsel Mr Waring contended, that the notice of amendment is in itself irregular, since the plaintiff failed to seek the leave of the court to ammend in the face of the fact that said amendment is opposed, as is required by Rule 28 of the Rules of this court.  He further contended, that in any case, the application for amendment even if countenanced, cannot be granted as it seeks to remove evidence already pleaded and upon which the defendants have based their defence, thus prejudicial to the defendants. It was contended replicando for the plaintiff by Mr Henwood, that the proposed amendment has no bearing whatsoever on the summary judgment application which is only against the 1^st defendant, since if the amendment is granted, it affects only the 2^nd defendant.  He further contended that the notice of amendment is properly before court, citing Erasmus B1 – 178.

 

[7]    Now, amendment of processes in this court is governed by Rule 28, upon which the notice of amendment instant is predicated.  For the purposes of this exercise, I shall concern myself with Rule 28 (1) – (5) which state as follows:-

 

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

 

1. Such notice shall state that unless objection in writing to the proposed amendment is made within ten days the party giving the notice will amend the pleading or document in question accordingly.
2. If no objection in writing be so made, the party receiving such notice shall be deemed to have agreed to the amendment.
3. If objection is made within the period prescribed in sub-rule (2) which objection shall clearly and concisely state the grounds upon which it is founded, the party wishing to pursue the amendment shall within ten 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 fit .
4. Whenever the court has ordered an amendment or no objection has been made within the time prescribed in sub-rule (2), the party amending shall deliver the amendment within the time specified in the court’s order or within five days after the expiry of the time prescribed in sub-rule (2), as the case may be. ( Under line mine)

 

[8]    It is beyond disputation from the foregoing that where an amendment is objected to, the party seeking the amendment is required within 10 days of said objection, to apply by notice for the leave of the court to amend and set the matter down for hearing.  But if an objection is not taken within 10 days of the notice of amendment, the party pursuing the amendment is automatically entitled to amend and deliver the amended process to the opponent, within 5 days of the amendment.

 

[9]    In casu, what appears to be the position is that the Notice of Amendment was filed on the 20^th of September 2010, and delivered to the defendants on the same date, as demonstrated by page 2 of the book of pleadings.

 

[10]  The record further demonstrates, that the notice of objection was served on the plaintiff, on the 4^th day of October, 2010.  See page 19 of book.  It is obvious to me therefore, that the said notice of intention to object was served upon the plaintiff within the 10 days period statutorily prescribed for service of such notice, excluding Saturdays and Sundays.

 

[11]  In the circumstances, there is much force in Mr Warings contention, that the leave of this court ought to have been sought first, within 10 days after the receipt of the Notice of Intention to object, in compliance with Rule 28 (4), before the matter was set down for hearing.  There is no evidence to show that any such application on notice for leave of court to amend, was ever made and none is urged in these proceedings.  The totality of the foregoing in my view, render the application for amendment instant, irregular.

 

[12]  I have however notwithstanding, chosen to ignore this irregularity in the interest of substantial justice and proceed to determine this application on the merits.  This is in line with the admonishments to this court in the recent past, not to allow less than perfect procedural irregularities defeat an entire process, in order to avoid the ill consequence of unnecessary delays, with the attendant waste of time and resources.  In the case of Shell Oil Swaziland (Pty) Ltd V Motor World (Pty) Ltd t/a Sir Motors Appeal Case No 23/2006, page 23, paragraph 39, Tebutt JA, sounded this warning in unequivocal language as follows:-

 

‘‘  39  The learned judge a quo with respect, also appears to have overlooked the current trend in matters of this sort, which is now well – recognized and firmly established, viz not to allow technical aspects to interfere in the expeditions and if possible inexpensive decision of cases on their real merits.  (See e.g ----Nelson Mandela Metropolitan Municipality and Others V Greyvenouw cc and others 2004 (2) SA 81 (SE).  In the latter case the court held that (at 95F – 96A, paragraph 40)

 

‘‘ The court should eschew technical defects and turn its back on inflexible formalism  in order to secure the expeditious decisions of matters on their real merits, so avoiding the incurrence of unnecessary delays and costs’’

 

[13]  The question that must of necessity be asked in the circumstances, is: is this application for amendment maintainable?

 

[14]  There is no doubt that courts have a very wide discretion in granting or refusing leave to amend.  Amendments are generally granted for the purpose of determining in the suit the real question or questions in controversy between the parties.  This is a discretionary power, which courts are enjoined not to exercise arbitrarily or capriciously, but judicially and judiciously, upon facts and circumstances which demonstrate that it is just to grant same.  Case law across jurisdictions has demonstrated, that the court will not grant an amendment in the following circumstances:-

 

1. where it will entail injustice to the respondent.
2. where the applicant is acting mala fide
3. Where the injury suffered by the respondent by reason of the amendment cannot be compensated for by costs.

 

[15]  The foregoing principles were elucidated by Bowen LJ in the case of Cropper V Smith (1884) 26 ch. D 700, 710, 711, in the following terms:-

 

‘‘ I think it is well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights.  I know of no kind of error or mistake, which if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party.  Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, I do not regard such amendment as a matter of favour or grace---’’

 

[16]  See also Tildesley V Harper (1878) 10 ch. D393, 396 and Shoe Machinery Co V Cutlan (1896) 1 ch. 108, 112. The foregoing principles were restated by Watermeyer J. (CPP 27 at 29, as follows:-

 

‘‘ 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, or in other words unless the parties cannot be put back for purposes of justice in the same position as they were when the pleading which is sought to amend was filed’’.

 

[17]  See also Herbstein and Van Winsen  ‘‘ The civil pratice of The Supreme Court of South Africa ‘‘ 4^th Edition 1997 at page 515 and Lucky Mahlalela and another V Gilfillan Investments (Pty) Limited Civil Case No. 2369/00 per Masuku J.

 

[18]  The natural question that flows from the principles enunciated ante is, whether the amendment sought herein is prejudicial to the 1^st Defendant?

 

[19]  I have already demonstrated herein that the 1^st defendant based part of it’s defence on annexures D and E.  In my view the amendment sought seeks to overreach that defence and thus prejudicial to the 1^st defendant, since it seeks to defeat the defence the 1^st defendant seeks to set up to the summary judgment application.  It is immaterial in the circumstances, that the summary judgment application relates to only the 1^st defendant or that, as is contended by Mr Henwood, the amendment if allowed, will affect only the 2^nd defendant. What is paramount in my view is the fact that the cause of action disclosed in the plaintiff’s particulars of claim, upon which the summary judgment application is founded, is premised on a loan allegedly guaranted by annexures D and E.  The 1^st defendant has relied on these annexures in setting up a defence to the summary judgment application.   To withdraw these annexures at this stage would destroy that defence and thus prejudicial to 1^st defendant.  The parties most certainly cannot be put back in the position they were before the amendment took place. In coming to this conclusion, I am guided by the pronouncement of the court in the case of Devonia Shipping Co Limited  V Luis Yeoman Shipping Co Limited (intervening) 1994 (2) SA 363 (CPD) at 369, where Innes J stated as follows:-

 

‘‘  A material amendmend such as the alteration or correction of the name of the applicant, or the substitution of a new applicant, should in my view usually be granted subject to the consideration mentioned of prejudice to the respondent---.

 

[20]  The risk of prejudice will usually be less in the case where the correct applicant has been incorrectly named and the amendment is sought to correct misnomer, than in the case where it is sought to substitute a different applicant.  The criterion in both cases, however, is prejudice which cannot be remedied by an order as to costs and there is no difference in principle between the two cases----.  The kind of irremediable prejudice which may occur, for example, where the amendment would deprive the other party of defence which it would otherwise have set up, as in Van Gend & Sons and Van Gend brothers, Trustees V G.A Van and H F Van Gend 1913 EDC 14 and Coetzee V Steyn 1955 (3) SA 48 (0)--------’’

 

[21]  In the light of the totality of the foregoing, I find that the amendment sought at this stage is prejudicial to the 1st defendant.  It is hereby refused with costs.

 

 

 

DELIVERED IN OPEN COURT IN MBABANE ON THIS

THE …………………………. DAY OF ……………….2011

 

 

 

OTA J.

JUDGE OF THE HIGH COURT