CASE NO:989/98
IN THE HIGH COURT OF NAMIBIA

IN the matter between :

SOUTH AFRICAN SUGAR ASSOCIATION
PLAINTIFF/APPLICANT

and

NAMIBIA SUGAR DISTRIBUTORS (PTY) LTD
DEFENDANT/RESPONDENT

CORAM:   LEVY, AJ

Heard on:    2000-03-24

Delivered on: 2000-04-07

JUDGMENT

This notice in terms of Rule 30, was duly served at the offices of Respondent's/Defendant's Attorney.

"6. As is apparent from Annexure "B", this notice to amend was not served at the offices of my firm but at the office of the Law Society where most firms of legal practitioners have agreed to accept service. As is apparent from the notice itself, this service was performed in the afternoon of 17 December 1999 (at 14h00). This was after my firm had closed or the year (at 13h00 on 17 December 1999) for the customary Christmas and New Year recess. The fact that our office closed between 17 December and 5 January was well known to all other firms of legal practitioners in Windhoek and to the Respondent's legal practitioners of record in particular. Indeed, the respondent's legal practitioner, Ms Katja Klein herself subsequently informed me that her firm also closed for the recess on that date.

These paragraphs contain serious allegations from which it could be inferred that there was a scheme calculated to avoid an objection being lodged timeously to the notice of amendment vvhich Respondent should have known, Applicant would have made as it had been raised in the Rule 30 application.

Respondent has not only not denied these allegations but has conceded in its affidavit, as did its counsel in argument, that the reason advanced by Applicant as to why the objection was filed late is reasonable. However, Respondent says that notwithstanding the aforegoing, Applicant is not entitled to an order condoning the late filing of its objection because Applicant must show;

"	that its opposition to the Respondent's proposed amendment is

Had Applicant objected timeously in terms of Rule 28, Respondent would have had to apply by way of notice of motion supported by affidavits for leave to amend.

The desired amendments relate firstly to amend an amendment of its pleadings dated 19 November 1999 and secondly to amend the pleading as it was when filed on 12 December 1997. The affidavits which Respondent would have had to file in order to obtain the amendment would have had to explain:
1.	Why the most recent amendment of 19 November 1999 was not in order at the time it was filed;
2.	Why the pleading of 12 December 1999 was not in order when it was filed and why it has taken two years before an amendment was applied for;
3.	Why both amendments are material;
4.	Why Applicant has not been prejudiced particularly by the delay in the making of the application after two years. This prejudice includes satisfying the Court that evidence necessary and available to Applicant in December 1997 is still available today.

Respondent contends that in order to get condonation, the onus is on Applicant to prove that Respondent will not succeed in its application for amendment. Respondent is therefore trying to benefit from its own irregular and prejudicial conduct. Having obstructed Applicant from objecting to its proposed amendment, it is trying to take advantage thereof by throwing the onus on Applicant. The principle is clear that no-one can benefit from its own bad faith or mistakes. Whether the inference of bad faith which Mr Angula says can be drawn, is or is not, drawn, Respondent cannot gain any advantage therefrom.

Furthermore there is in law of contract, the doctrine of fictional fulfilment. Where a party to a contract deliberately and in bad faith prevents the fulfilment of a condition in order to escape the consequences of a contract, the law considers the unfulfilled condition fulfilled as against the party guilty of bad faith.

The present inquiry is certainly not of a contractual nature but on a parity of reasoning, it is clear that if the conduct of Respondent's legal representative was in bad faith and it obstructed the timeous objection by Applicant, this application should be granted forthwith.

In its opposing affidavit Respondent has emphasised that to grant the application would be a waste of time because the opposition to the amendment will not succeed. Nevertheless, Respondent wasted more time by not bringing a counter application for the amendment. Nevertheless, Respondent insists on the Court dealing with the proposed amendments. Should condonation be granted the Court will not confine Applicant to the grounds of opposition mentioned in its Notice of 21 January 2000.

The law reports are studded with cases dealing with applications to amend pleadings from which it is clear that the granting of an amendment is not a formality. There are certain essential legal requirements which an applicant for an amendment must fulfil.

"	even if the party applying for an amendment tenders to pay wasted

In dealing with the question of prejudice the Court said that "if there was real doubt whether or

not prejudice or injustice will be caused	if the amendment is allowed, it should be refused."

Respondent has fded, in response to this application, an affidavit dealing with certain issues which should have accompanied its application for an amendment. It has not counterclaimed for an amendment but in any event, even at this stage, its affidavit falls far short of what is required.

Applicant contends that Respondent is withdrawing an admission. Respondent says at most its plea is ambiguous. If it is ambiguous, it is vague and embarrassing and capable of being excepted to. Failure to have excepted by the Applicant can result in a special order as to costs. If the pleading is capable of the meaning allocated to it by Applicant, Respondent has then by its own dereliction, allowed Applicant to labour under a false impression and once again, it may well be that Applicant has been prejudiced in not gathering the evidence timeously, which it would have gathered had the pleading been in order.

110H- 111A)

In its opposing affidavit even at this late stage, Respondent says:

"	I point out that Applicant does not advance a single reason as to
why it will be prejudiced if the amendment will be allowed."

As already stated the onus is on Respondent to show there will be no prejudice and if there is doubt, the amendment will be refused.

For these reasons the order of the Court is:
5.	Condonation is granted to Applicant for failing to object timeously in terms of Rule 28 to the proposed amendment of its plea by Respondent dated 17 December 1999;
6.	Leave is granted to Applicant to amend and amplify its Notice of Objection if it so desires;Defendant shall pay the costs of this application.

Counsel for the Plaintiff-Applicant:     Advocate D F Smuts 
Instructed by: Messrs Lorentz & Bone

Counsel for the Defendant/Respondent:    Advocate R Heathcote 
Instructed by: Messrs P F Koep & Co