IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 207/91
In
the matter between:
NINO
MANUFACTURERS (PTY) LIMITED
VS
INTEROUTE (PTY) LIMITED
CORAM :
DUNN J.
FOR
THE PLAINTIFF : MR FLYNN
FOR
THE DEFENDANT : MR FINE
JUDGMENT
19TH SEPTEMBER 1994
The
plaintiff issued a provisional sentence summons on the 7th March 1991
claiming payment of the sum of E23,513.00 together with interest and
costs. The amount claimed was in respect of a cheque dated 31st
October 1990 drawn by the defendant on Barclays Bank of Swaziland to
and in favour of B. Cozzi or bearer of which cheque the plaintiff as
bearer alternatively endorsee was a holder for value.
The
defendant through Shirley Albers, one of its directors filed, an
affidavit resisting provisional sentence. Briefly stated the
opposition to the claim was on the grounds that the amount claimed
was not due to B. Cozzi. It was alleged that B. Cozzi together with
one David Bourdin had induced the defendant's accountant to complete
the cheque and to deliver it to B. Cozzi, by fraud. Provisional
sentence was, however, granted by Rooney J. on the 7th October 1991.
2
On
the 6th December 1991 the defendant filed notice of its intention to
enter the principal case, having satisfied the amount of the judgment
for provisional sentence. The defendant filed its plea on the 27th
May 1992. The defendant denied at paragraph 1 " the existence of
a registered company entitled Nino Manufacturers (PTY) Limited"
(The Plaintiff). The plaintiff was put to proof of its locus standi
in judicio. The allegations of a fraudulent misrepresentation to the
defendant's accountant resulting in the issue of the cheque was
repeated in the plea.
A
request for a hearing date was made to the Registrar on the 9th June
1994. A pre-trial conference (Rule 37) was held between the parties
on the 28th June 1994. The minutes of the conference were filed from
the bar when the matter was called before me. The minutes do not bear
the Registrar's stamp indicating that they were served on the
Registrar. The Rules of the Court are to be obeyed. The purpose of
Rule 37 is to seek ways of curtailing proceedings by identifying the
issues that call for a decision. The Judge hearing the case should
have timeous notice of the pre-trial conference minute to enable him
to know what the issues for decisions are. It must be noted that the
provisions of Rule 37(5) with regard to the filing of a pre-trial
minute at the time of the filing of a request for a trial date are
mandatory.
On
the 12th September 1994 the plaintiff filed a notice of intention to
amend the pleadings by-amending the Plaintiff's name from Nino
Manufacturers (PTY) Ltd to Nino Signs and Manufacturing (PTY) Ltd
wherever it appears in the pleadings.
3
The
case had by then been set for hearing for to-day. The defendant
immediately filed a notice of objection opposing the proposed
amendment. Both the notice of intention to amend and the notice of
objection do not comply with Rule 28, Sub-rules 2,3 and 4 of which
provide-
(2)
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.
(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 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.
The
plaintiff's notice did not refer to the 10 day period set out under
Sub-rule 2. No attempt was made to seek condonation by the court for
the short notice. The defendant on the other hand breached the rule
by not clearly and concisely stating the grounds upon which its
objection was founded. Here again the importance of compliance with
the Rules cannot be overemphasised.
4
The
pre-trial minute which was handed in sets out the following –
2.
The defendant continues not to admit the citation and locus standi in
judicio of the
plaintiff
as set out in paragraph 1 of the defendant's plea.
3.
The plaintiff will revert to the defendant with regard to documentary
proof of its locus standi in judicio and identity and the defendant
will thereafter reconsider its position.
4.
If agreement is not reached with regard to the issue of locus standi
prior to trial it shall be dealt with by way of a separate hearing in
limine.
When
Mr Fine commenced his submissions on the point in limine Mr Flynn
indicated that it was not in dispute that the plaintiff did not
exist. He indicated that the company that was intended to be
substituted for the plaintiff was incorporated in the Republic of
South Africa in 1984. The certificate of incorporation of the company
is included in the bundle of discovered documents. The name of the
company is reflected as NINO SIGNS & MANUFACTURERS (PROPRIETARY)
LIMITED. This name differs from that set out in the notice of
amendment namely NINO SIGNS AND MANUFACTURING (PTY) LTD. There are
two extracts from the minutes of meeting of the plaintiff as cited.
Both extracts were signed by the chairman of the plaintiff. The first
extract contains two resolutions relevant to the acquisition by the
plaintiff of B. Cozzi ' s right, title and interest in the cheque
drawn by the defendant. The second extract deals with a resolution
relevant to the institution of the present action and B. Cozzi's
authority to sign the necessary power of attorney.
5
As
pointed out earlier, the plaintiff has not explained how the action
was instituted in the plaintiff's name. There is no allegation of any
error in drawing up the extracts of the minutes relevant to this
action or the citation of the plaintiff. The difference in the names
reflected in the certificate of incorporation and the notice to amend
remain unexplained. No explanation has been given for the continued
citation of the plaintiff in its present form despite the clear plea
by the defendant as far back as the 27th May 1992.
Mr
Flynn referred the court to Rule 15 dealing with a change of parties
and submitted that the application to amend can be granted under this
Rule. Rule 15 deals with the procedure where substitution becomes
necessary by reason of a change of status. The present application
involves the introduction of a new persona. There is nothing in the
papers before me explaining how the extracts of the minutes and the
provisional sentence summons were issued in the name of the
plaintiff. All that I have is an application to substitute the name
of the plaintiff with that of NINO SIGNS & MANUFACTURING (PTY)
LIMITED. I do not know whether or not there was a formal change of
name from the plaintiff to NINO SIGNS & MANUFACTURING (PTY)
LIMITED in the Company Register in South Africa. The requirement for
a proper resolution by NINO SIGNS & MANUFACTURERS (PROPRIETARY)
LIMITED regarding the requisition of the cheque from B. Cozzi and his
subsequent authority to attend to the institution of the proceedings
against the defendant cannot be dispensed with by a simple change of
the plaintiff's name. This would call for a meeting of the directors
to correct the minutes filed in these proceedings. The learned
authors Herbstein and Van Winsen state in THE CIVIL PRACTICE OF THE
SUPERIOR COURTS IN SOUTH AFRICA 3RD EDITION p.356.
6
The
litigant asking for an amendment is in fact craving an indulgence and
he must offer some explanation as to why he requires the amendment
and more especially if the application for amendment is not timeously
made some reasonably satisfactory account must be given for the
delay.
There
is authority for the view that the court has a wide discretion with
regard to the amendment of pleadings on being satisfied that no
prejudice will be caused to the opposite parties. See HERBSTEIN and
VAN WINSEN supra p. 355 and the authorities there cited; ERASMUS,
SUPERIOR COURT PRACTICE B1-118; HARMS, CIVIL PROCEDURE IN THE SUPREME
COURT P 131.
The
grant of the amendment would clearly be prejudicial to the defendant.
the defendant entered the principal case in May 1992 and set out its
defence. Every other step was taken thereafter to bring the matter to
trial and it is virtually at the last minute that the plaintiff seeks
to change the name of the plaintiff. Somebody has quite clearly been
negligent in the institution of the action. This court has not been
given a full and frank account of precisely what transpired. The
application to amend is refused. the point raised is limine is
upheld, the action is dismissed with costs.
B.
DUNN
JUDGE
