REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
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RULING
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Case number: HC-MD-CIV-ACT-OTH-2021/03840 INT-HC-AMDPLEA-2024/00719
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In the matter between:
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JOB JANUARIE |
FIRST APPLICANT |
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KARL MARTHINUS JANUARIE |
SECOND APPLICANT |
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HENRY HERMANUS JANUARIE |
THIRD APPLICANT |
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JOB JANUARIE N.O. |
FOURTH APPLICANT |
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KARL MARTHINUS JANUARIE N.O.
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FIFTH APPLICANT |
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and
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PAULUS BENJAMIN JANUARIE |
FIRST RESPONDENT |
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DEIDRE ARNTRUD JANUARIE
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SECOND RESPONDENT |
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Neutral citation: |
Januarie v Januarie (HC-MD-CIV-ACT-OTH-2021/03840) [2025] NAHCMD 3 (16 January 2025)
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Coram: |
DE JAGER J |
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Heard: |
18 November 2024 |
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Delivered: |
16 January 2025
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Flynote: Pleadings – Amendment – Particulars of claim – Cannot object to an averment already in the particulars of claim – If read holistically (as it should), the particulars of claim contain supporting allegations for the conclusions sought to be introduced – Allegations sought to be introduced are not contradictory – New cause of action (being different from new claim) may be introduced as the right enforced and relief claimed are the same or substantially the same – Belated amendment, which did not include a change of front, allowed to ventilate the real issues in dispute after plausible and reasonably satisfactory explanation (although open to criticism) provided and the court finding that the application is not mala fide or an abuse of process and the defendants’ prejudice is not such that costs (if awarded) cannot compensate.
Summary: The leave to amend application before court is opposed on the following five grounds. Firstly, the particulars of claim would be vague and embarrassing because the allegation sought to be introduced that the transfer of the land in question was contrary to the will relevant to the action contradicts the will as the will makes provision for a sale of undivided portions of the farm between the brothers. Secondly, the particulars of claim would be vague and embarrassing as two paragraphs sought to be introduced amount to conclusions without supporting allegations having been pleaded, thereby disclosing no cause of action for the conclusions. Thirdly, a certain allegation sought to be introduced is incompatible with and contradicts a position already relied on in the particulars of claim. Fourthly, a new cause of action, seeking to include a new prescribed claim, is sought to be introduced. Lastly, the amendment is an abuse of process as it is sought belatedly at an advanced stage of the proceedings, it is not bona fide, it is gainsaid by evidence already led, it amounts to a change of front and cause of action after the parties concluded a pre-trial agreement, and no amendment is sought of the pre-trial order. The action concerns a dispute between brothers, who inherited undivided shares in a farm from their late father, about one of the undivided shares that was transferred to one of the brothers instead of another.
Held that, the first ground of the objection is not upheld because the defendants cannot object to the intended amendment on an averment already in the particulars of claim.
Held that, the second ground of the objection is not upheld because, if read holistically, the particulars of claim does contain supporting allegations for the conclusions sought to be introduced.
Held that, the third ground of the objection is not upheld because the plaintiffs did not allege that the real agreement was conditional, and there is nothing contradictory in alleging it never became of force and effect and that it is void ab initio.
Held that, the fourth ground of the objection is not upheld because the law does not prohibit amendments to particulars of claim seeking to introduce new causes of action, the right sought to be enforced and the relief claimed are the same or substantially the same, and the question before court is not whether to allow an amendment seeking to introduce a new claim which may have prescribed.
Held that, the fifth ground of the objection is not upheld for the following reasons. The defendants are not blameless for the plaintiffs’ erroneous persistence with the rei vindicatio. It cannot be said the intended amendment is mala fide or an abuse of process. Although open to criticism, a plausible and reasonably satisfactory explanation was provided for why an amendment became necessary at such a belated stage. Parties must be allowed to ventilate the real issues in dispute. The previous leave to amend application concerned a different intended amendment and was refused for reasons irrelevant to the current application. The defendants failed to establish that the intended amendment is gainsaid by evidence already led. The intended amendment is not a change of front. The court is empowered to amend the pre-trial order. The defendants’ prejudice is not such that costs (if awarded) cannot compensate.
Held that, the objection is not upheld and the court exercises its discretion to allow the intended amendment and, in the circumstances of the case, costs are costs in the cause (if any).
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ORDER
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The applicants are granted leave to amend their particulars of claim as per their notice of intention to amend dated 20 August 2024.
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The amended particulars of claim must be delivered on or before 23 January 2025.
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The parties must deliver a joint status report on or before 30 January 2025 with suggested delivery dates for consequentially amended pleadings (if any), supplementary witness statements (if any), and a revised joint proposed pre-trial order.
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Costs are costs in the cause (if any).
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The pre-trial conference scheduled for 22 January 2025 is replaced with a status hearing to be held on 5 February 2025 at 08:30.
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The matter under INT-HC-AMDPLEA-2024/00719 is finalised and removed from the roll.
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RULING
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DE JAGER J:
Introduction
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Before the court is an application for leave to amend the particulars of claim. The application follows the dismissal of the plaintiffs’ previous leave to amend application, which was brought after the trial was postponed at their request during the second plaintiff’s cross-examination.1
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The application is opposed on the following five grounds:
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The particulars of claim would be vague and embarrassing because the allegation sought to be introduced that the transfer of the land in question was contrary to the will relevant to the action contradicts the will as the will makes provision for a sale of undivided portions of the farm between the brothers.
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The particulars of claim would be vague and embarrassing as two paragraphs sought to be introduced amount to conclusions without supporting allegations having been pleaded, thereby disclosing no cause of action for the conclusions.
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A certain allegation sought to be introduced is incompatible with and contradicts a position already relied on in the particulars of claim.
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A new cause of action, seeking to include a new prescribed claim, is sought to be introduced.
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The intended amendment is an abuse of process as it is sought belatedly at an advanced stage of the proceedings, it is not bona fide, it is gainsaid by evidence already led, it amounts to a change of front and cause of action after the parties concluded a pre-trial agreement and no amendment is sought of the pre-trial order.
The parties
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The first (Job Januarie), second (Karl Marthinus Januarie) and third (Henry Hermanus Januarie) applicants and the first respondent (Paulus Benjamin Januarie) are brothers. Lloyd Januarie (the third defendant in the main action who is not a party to the leave to amend application) is the executor of their late brother’s estate (Louis Albertus Januarie). Henry was substituted with Lotta Ambunda under a court order dated 14 September 2022 after being appointed as his curator ad litem on 22 July 2022. Henry allegedly suffers from a cognitive developmental deficiency. The fourth and fifth applicants are Job and Karl, respectively, in their capacities as executors of their late father's estate (Nicolaas Januarie). The second respondent (Deidre Arntrud Januarie) is married to Paulus in community of property. The first to fifth applicants are the first to fifth plaintiffs, respectively, in the main action, while the first and second respondents are the first and second defendants, respectively. The Registrar of Deeds for the Rehoboth district (the Registrar) and the Master of the High Court (the Master), the fourth and fifth defendants in the main action, are not parties to the leave to amend application. Job, Karl (in both capacities) and Henry are referred to as the plaintiffs and Paulus and Deidre as the defendants.
The plaintiffs’ claim
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The plaintiffs’ claim is as follows.
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Under the late Nicolaas’s will, Job, Karl, Henry, Paulus, and the late Louis inherited undivided portions of a farm measuring 1564,0710 hectares (the farm). An undivided portion measures 312,8142 hectares. By implication, the will indicates the undivided portions would be shared amongst the five brothers, which means each would be entitled to 312,8142 hectares. The will further indicates which farm portions are allocated to which heir. Job is allocated ‘mountain’, Louis is allocated ‘die vlak’, Karl is allocated the portion neighbouring ‘Nauzerus and Kabiras’, and the remainder of the farm, including the ordonans, may be allocated according to Henry’s and Paul’s preferences. By implication, Henry and Paulus would each receive 312,8142 hectares out of the remainder of the farm comprising 625,628 hectares. It was a condition of the will that the brothers may sell their undivided portions of the farm to each other but not to third parties.
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All the brothers except Henry, who, due to his limited and poor cognitive capacity, needed one of the executors’ assistance to attend to the Registrar’s office to sign his form RA2, signed forms RA2, being certificates under s 13(2) of the Registration of Deeds in Rehoboth Act 33 of 1976 (the Act) required to transfer the undivided portions of the farm to the heirs. Consequently, the transfers of the undivided portions were effected to all the heirs but not Henry.
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Around 27 June 2007, the defendants unlawfully caused the undivided portion that was bequeathed to Henry to be transferred to themselves. That transfer was unlawful, unenforceable and invalid because:
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It was done contrary to the will (also the intended amended paragraph 32.1).
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It was done without Henry’s knowledge and consent, who could not have consented to a valid transfer agreement because of his limited and poor cognitive capacity.
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It was done without the executors’ knowledge or consent (also the intended amended paragraph 32.3.1).
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It was done without the Government’s written consent as required by the condition registered against the title deed (also the intended amended paragraph 32.3.1 if read holistically with the remainder of the particulars of claim).
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It was in non-compliance with s 13(2) of the Act in that there was no certificate in the prescribed form under s 13(2)(a), and such certificate was not accompanied by a document issued by the magistrate under s 13(2)(b)(ii).
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Therefore, no valid causa existed for the transfer to the defendants, and any purported agreement to effect such transfer is void.
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Furthermore, no agreement could be concluded between Henry and Paulus whereby the ordonans was beaconed, measured, divided and surveyed. As a result, the boundary lines of each portion within it are yet to be defined.
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Henry is the lawful owner of the undivided portion measuring 312,8142 hectares. Alternatively, he owns an area of land measuring 312,8142 hectares of the ordonans.
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Around 27 June 2007, Paulus unlawfully took occupation and transfer of the ordonans, leaving Henry without any title or right over any portion of it. Paulus is solely in possession of and currently occupies the ordonans. Alternatively, if found that he no longer possesses it, the defendants disposed of it without Henry’s knowledge and contrary to the will’s conditions. The market value of the undivided portion measuring 312,8142 hectares is N$710 000.
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Apart from their prayers for damages and costs, the plaintiffs pray that:
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The transfer to the defendants on 27 June 2007 of the undivided portion measuring 312,8142 hectares forming part of the ordonans be cancelled.
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The Master oversees the transfer of an undivided portion of the farm measuring 312,8142 hectares from the defendants to Henry.
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Lloyd (the plaintiffs probably meant the Registrar) effects transfer of the undivided portion measuring 312,8142 hectares from the defendants to Henry and provides Henry with a copy of the title deed reflecting the transfer to his name.
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The defendants restore possession and occupation of an area measuring 312,8142 hectares of the ordonans to Henry within seven days from the order date, failing which the Deputy Sheriff is directed to evict the defendants or anyone else occupying the area through them.
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Alternatively, if Paulus is no longer in possession of the property, the defendants must pay Henry N$710 000 together with interest.
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Henry also claims from the defendants N$1300 per month from 1 November 2018 to the date his possession is restored for loss of income damages suffered from his loss of use and enjoyment of his property.
The intended amendment
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Apart from minor intended amendments unaffected by the objection, the intended amendment envisages the following.
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In so far as the defendants allege that Henry concluded agreements with them, written or oral or both, whereby he sold, donated, or otherwise alienated either his hope or expectation to inherit (spes), or right to inherit, or his undivided portion of the farm forming part of the ordonans, the intended amendment seeks to include a paragraph that at the time of concluding such agreements and at all other times Henry was (and remains) of unsound mind and was (and is) as a result incapable of understanding and appreciating the nature and contents of such agreements due to his severe cognitive impairment.
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The intended amendment further seeks to change the allegations supporting the plaintiffs’ position that the transfer of the undivided portion effected on 27 June 2007 was unlawful and should be set aside as follows.
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By adding that the transfer was done contrary to the will. It is pointed out that that allegation is already included in the current particulars of claim.
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By substituting the allegation that the transfer was done without Henry’s knowledge and consent with the allegation that any alleged underlying agreement to the transfer is invalid, unenforceable or void ab initio as Henry, because of his limited and poor cognitive capacity, could not have entered into a valid agreement to sell, donate or otherwise alienate his hope or expectation to inherit (spes) or his right to inherit or his undivided portion of the farm.
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By including the allegation that the real agreement to the transfer is void ab initio for the following reasons.
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The transfer was done without the knowledge or consent of Job and Karl as executors of their late father’s estate (which is already alleged in the current particulars of claim). They did not intend to transfer an additional 312,8142 hectares intended for Henry under the will to the defendants. Accordingly, there was no consensus between the executors and the defendants.
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The transfer was done contrary to the consent conditions issued by the Ministry of Agriculture, Water and Rural Development under the 25 July 2002 consent letter.
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The transfer was contrary to the Agricultural (Commercial) Land Reform Act 6 of 1995, as no waiver certificate was in place for the transfer from the estate to the defendants. As a result, s 17(2) of that Act provides that no agreement of sale or instrument of transfer is of force and effect.
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As such, the purported real agreement, including any alleged RA2, never became of force and effect.
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Alternatively, the only RA2 which was signed by the executors was signed during May 2004 to transfer Paulus’s 312,8142 hectares of land to him out of the estate in terms of which the certificate under s 13(2)(b)(iii) was issued by the Magistrate on 13 November 2003, and the title deed under 656/2004 was issued on 13 October 2004.
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Any subsequent RA2, including the RA2 signed and/or certified on 11 July 2005, transferring an additional 312,8142 hectares to Paulus out of the estate (and in terms of which the RA1 was issued under 584/2007) amounts to a forged document and/or a fraudulently created document without the knowledge or consent of the executors and Henry. By that time, the executors had already, on 12 May 2004, signed a RA2 (certified on 3 November 2003) in favour of the defendants and could not have signed another in their favour on 12 May 2004 (certified on 11 July 2005). The certification date of the RA2 (11 July 2005) is dated beyond the date on which the RA2 was signed by the executors. The alleged RA2 (certified on 11 July 2005) was not co-signed by Henry, and no redistribution agreement was concluded.
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In the further alternative, if found that the real agreement is not forged, any subsequent RA2, including the RA2 certified on 11 July 2005, transferring an additional 312,8142 hectares of land to Paulus out of the estate (and in terms of which the RA1 was issued under 584/2007) was signed as a result of a fraudulent misrepresentation which induced the executors to sign any such real agreement which occurred as follows. During or about 2004 or 2005, Paulus and/or Deidre knowingly, alternatively, recklessly, presented the subsequent RA2 signed and/or certified on 11 July 2005 for signature to the executors and represented the following to them. Such RA2 was for the transfer of 312,8142 hectares under the will when, in fact, it was for an additional 312,8142 hectares stemming from the ordonans. The defendants were not yet the owners of 312,8142 hectares under the will, and they still needed to receive Paulus’s portion of the farm as provided for in the will. Such transfer needed to occur in terms of an inheritance, as indicated on the alleged RA2. The representations were false and made without a belief in their truth for several reasons pleaded. The misrepresentation and fraud caused the executors to sign the alleged real agreement (such as the RA2 certified on 11 July 2005) upon which the land to be inherited by Henry was transferred out of the estate.
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Instead of the allegation that Henry is the lawful owner of the undivided portion measuring 312,8142 hectares and the alternative allegation thereto, the plaintiffs wish to allege that Henry was supposed to be the lawful owner of 312,8142 hectares of the ordonans.
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The plaintiffs claim that the unlawful transfer be set aside and that transfer be affected from the defendants to the estate.
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The plaintiffs intend to delete the alternative rei vindicatio and damages claims.
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Save for the costs prayer, the plaintiffs wish to substitute their prayers with the following:
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Any agreements (being the underlying agreements) between Henry and the defendants, whether written or oral or both, whereby Henry sold, donated, or otherwise alienated either his hope or expectation to inherit (spes), or his right to inherit, or his undivided portion of the farm measuring 312,8142 hectares forming part of the ordonans be declared void ab initio and unenforceable since Henry was and is wholly incapable of understanding and appreciating the nature and contents of such alleged agreements due to his severe cognitive impairment and accordingly Henry was mentally incapable of entering into such agreements.
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Such relevant RA2 or any other document held to be the real agreement which caused the transfer intended for Henry under the will but transferred instead to the defendants be declared void ab initio.
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The transfer of the undivided portion of the farm measuring 312,8142 hectares forming part of the ordonans to the defendants be set aside and cancelled, and transfer thereof be effected to and in favour of the estate or Henry as the court may find.
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The Master must oversee the transfer from the defendants to the estate or Henry.
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Lloyd (they probably meant the Registrar) must affect the transfer from the defendants to the estate or Henry.
The first ground of the objection
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The first ground of the objection is that the particulars of claim would be vague and embarrassing because the allegation sought to be introduced that the transfer of the land in question is contrary to the will contradicts the will as the will makes provision for a sale of undivided portions of the farm between the brothers.
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The current particulars of claim already alleges that the transfer was unlawful because it was done contrary to the will.
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The defendants cannot object to the intended amendment based on an averment already in the particulars of the claim.
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The first ground of the objection is not upheld.
The second ground of the objection
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The second ground of the objection is that the particulars of claim would be vague and embarrassing in that the following two paragraphs sought to be introduced amount to conclusions without supporting allegations having been pleaded, thereby disclosing no cause of action for the conclusions.
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The transfer was done contrary to the consent conditions issued by the Ministry of Agriculture, Water and Rural Development under the 25 July 2002 consent letter (intended amended paragraph 32.3.1).
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The transfer was contrary to the Agricultural (Commercial) Land Reform Act 6 of 1995, as no waiver certificate was in place for the transfer from the estate to the defendants. As a result, s 17(2) of that Act provides that no agreement of sale or instrument of transfer is of force and effect (intended amended paragraph 32.3.2).
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A pleading must be read holistically.2 If read holistically, the defendants must have seen that paragraph 23 of the intended amended particulars of claim refers to and attaches the 25 July 2002 consent letter and that paragraph 24 refers to the consent condition that the undivided portions of the farm may not be transferred separately, mortgaged separately or otherwise dealt with separately without the Government’s written consent. The particulars of claim does contain support for the conclusion in the intended amended paragraph 32.3.1.
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The intended amended paragraph 32.3.2 supports the conclusion therein when it states that no waiver certificate was in place for the transfer from the estate to the defendants.
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The second ground of the objection is not upheld.
The third ground of the objection
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The defendants contend that the allegation sought to be introduced in the intended amended paragraph 32.3.2 (the second paragraph 32.3.2) that the purported real agreement, including any alleged RA2, never became of force and effect, is incompatible with and contradicts the position set out in the intended amended paragraph 32.3 that the real agreement is void ab initio for certain reasons. It was submitted in the objection that the latter allegation asserts that the real agreement never became effective, that it was seemingly conditional for some or other reason, while the former allegation is that they were void ab initio. They conclude that those two positions are contradictory, render the particulars of claim vague and embarrassing, and fail to disclose a cause of action.
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The plaintiffs did not allege that the purported real agreement was conditional. They alleged that it never became of force and effect, confirming the position that it was void ab initio (from the outset). There is nothing contradictory in those two positions.
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The third ground of the objection is not upheld.
The fourth ground of the objection
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The fourth ground of the objection is that the intended amendment seeks to introduce a new cause of action to include a new prescribed claim. The following supporting submissions are made in the objection. The plaintiffs previously relied on the rei vindicatio, whereas, through the intended amendment, they rely on a lack of intention to transfer a portion of the land to the defendants. Alternatively, they rely on a cause of action premised on fraud. The factual matrix unpinning the allegations was in the plaintiffs’ knowledge before the action was instituted, but that cause of action was never relied on. The intended amendment states that the fraud was allegedly perpetrated from 11 July 2005 onward. The inclusion of fraud is an afterthought, and the indebtedness arising from it is a prescribed debt as contemplated in the Prescription Act 68 of 1969. The defendants contend that the debt premised on a real right like the rei vindicatio would only prescribe after 30 years, while one based on a personal right would prescribe in three years.
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According to the defendants, Job and Karl knew Henry sold his spes. The defendants rely on a koopbewys dated 28 July 2005 and 6 July 2007. Deidre said Job had full knowledge of the arrangement and assisted Henry. She further said that was evidenced by his signature on the 28 July 2005 document and that no new facts came to the plaintiffs’ disposal. The defendants further rely on ss 17(3) and 18(2)(b) of the Agricultural (Commercial) Land Reform Act 6 of 1995 for their submission that no waiver certificate was required.
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The plaintiffs persist with the declarator sought in the current particulars of claim but on a different, not an opposite, factual basis. They contend the intended amendment aligns the papers with the facts that would raise important issues if disputed. They say it would not be in the interest of the administration of justice if the intended amendment was refused and the plaintiffs were to withdraw the action and institute a new one.
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The plaintiffs deny that the intended amendment seeks to introduce a new cause of action and that they knew about the facts relied on and the debtor’s identity since at least 11 July 2005, as the defendants allege. They argue that if the intended amended particulars of claim constitutes a debt, then the current particulars of claim also constitutes a debt, and the first and second defendants should not be allowed to raise prescription as an objection.
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According to Karl’s testimony, he was not notified of the transaction before the transfer. Karl testified that he only became suspicious when Henry mentioned in 2020 that Paulus told him that he must leave his land if he did not do what Paulus told him to do on the farm.
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Job stated there could not have been any knowledge before 2020. He further stated his suspicion only arose in 2021. Job said without knowing the true situation, they could not have instituted action earlier, and even if they acted most diligently, the Master’s file was nowhere to be found. He further said the first time he had sight of the RA2 was shortly after the defendants discovered it, and it was not in the Registrar’s possession when Karl inspected the file. Job suspects Paulus paid the entire land tax out of his own pocket to keep the transfer secret. The RA1 was seemingly issued on 28 February 2007, and the entire land tax account was settled on 2 February 2007. He also questions how to marry the koopbewys of 27 July 2005 with the RA2 relied on and certified on 11 July 2005, as the koopbewys should pre-date the actual RA2 form. Further suspicion should be raised as there is no consent from the Government to vary the previous consent of 25 July 2002. Job said the heirs would have had to conclude a redistribution agreement, the entire family had to consent to such transfer, and no waiver certificate was obtained before the transfer occurred. Job disputes his signature on the koopbewys. He said the will does not allow for the transfer as it only allows the brothers, once they become owners, to alienate their portions to the other brothers post-finalisation of the estate. Job pointed out that the RA2 relied on by the defendants states that it was occasioned by inheritance, while the defendants’ case is that it occurred through a private treaty and a deed of sale for N$40 000.
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The plaintiffs contend prescription did not run against a mentally compromised person like Henry, but it continued against the executors. They argue prescription does not apply to the underlying agreement to which Henry was a party. Job said the allegations of fraud are made in his witness statement, and in Karl’s witness statement, he alludes to untoward actions, but he does not specifically allege fraud.
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The defendants contend that the fraud relied on is perpetrated on Job and Karl and not on Henry, and therefore Henry’s mental incapacity has nothing to do with the interruption of prescription. For Job and Karl, the defendants say the claim premised on fraud prescribed. They say Karl identified his and Job’s signature on exhibit P (the RA2 certified on 11 July 2005) and said he did not agree with its content, and when asked whether he alleges fraud, he said he cannot say that, and he does not testify that it is a fraud, but on seeing the original, he could change his argument. The plaintiffs were initially advised not to rely on fraud, and they anticipated success if they proved Henry’s mental incapacity.
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A cause of action is the facta probanda and has been defined as follows:3
‘. . . every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. It does not comprise every piece of evidence which is necessary to his right to judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.’
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Comparing the facta probanda between the current and intended amended particulars of claim, there are differences, but that does not invariably mean that the current particulars of claim did not interrupt prescription. If the right that is sought to be enforced and the relief claimed are the same or substantially the same, prescription would have been interrupted even if new or different facta probanda are introduced by the intended amendment.4 The law does not prohibit amendments to particulars of claims seeking to introduce new causes of action. That may not, however, always be the case when new claims (debts) are sought to be introduced.
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The intended amendment seeks to introduce new facta probanda, but the plaintiffs still seek to set aside and cancel an unlawful land transfer and have it transferred to the rightful owner. The right sought to be enforced, and the relief claimed are the same or substantially the same. Essentially, the plaintiffs intend to expand the reasons for their claim that the transfer was unlawful, which claim was, in any event, not based on the rei vindicatio. The law does not prohibit such amendment. There is a difference between a new claim and a new cause of action. A new claim does not arise merely because of a new cause of action.5 The plaintiffs may introduce a new cause of action by an amendment while their claim (the relief sought) remains the same or substantially the same.
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The court now turns to the defendants’ contention that the intended claim prescribed.
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Causes of action do not prescribe, debts prescribe. The same or substantially the same relief is sought. Prescription was not pleaded. The question before court is not whether to allow an amendment seeking to introduce a new claim which may have prescribed. As a result, the amendment cannot be refused on the prescription point.
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Moreover, the defendants’ contention that the intended claim prescribed gives rise to material factual disputes unresolvable on affidavit. If prescription is pleaded, and depending on its basis, the court will require oral testimony to make the relevant factual findings.
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The fourth ground of the objection is not upheld.
The fifth ground of the objection
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The fifth ground of the objection is that the amendment is an abuse of process. The following supporting submissions are contained in the objection. It is the third amendment sought. The amendment is sought very late at an advanced stage of the proceedings. The trial has commenced. Cross-examination of a key witness commenced. The previous application for leave to amend failed. The intended amendment is not bona fide. It is an afterthought and, in all probability, gainsaid by the evidence already led. There is a change of front. The parties have already concluded a pre-trial agreement, and the pre-trial order is not sought to be amended.
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The defendants complain it is difficult to fathom how the plaintiffs could never have realised Henry was not at any stage an owner and never entitled to a rei vindicatio.
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Job explained as follows:
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The defendants referred to three written documents with their plea in January 2023, purportedly signed by Henry. An alleged koopbewys, an alleged deed of alienation and an alleged RA2. The defendants averred Henry concluded an oral agreement with them. The defence of the sale of a spes is sought to be introduced by the defendants without being borne out by the plea, and the defendants never indicated which RA2 they relied on as the real agreement. It was only at the trial, during cross-examining Karl, that the defendants’ counsel, for the first time, put the defendants’ version whereby reliance was placed on the RA2 certified on 11 July 2005 (exhibit P). The belated amendment is partly occasioned by the defendants’ ‘inability to properly and concisely plead’ to enable the plaintiffs to ascertain the true defence and purported real agreements. To the averments that Henry is the rightful owner, that transfer was effected (from the estate to Henry and then) from Henry to the defendants, and that the unlawfully transferred land portion must be returned to Henry, the defendants did not plead a denial. Their defence was always that they are the owners to Henry’s exclusion, and it was never their case that Henry is not entitled to the relief since the estate is the owner or that the transfer was effected directly from the estate to them and as such the necessity to amend did not reveal itself at the time. The plaintiffs believed the question of ownership was not an issue since the defendants only pleaded that they were the owners. It was only during cross-examination that the defendants’ counsel indicated he intended to argue the relief is incompetent since the estate was the owner and not Henry, and the land portion was transferred directly from the estate. Under the pre-trial order, the court was only required to determine whether the defendants are the owners.
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It was only at the trial that they learned the defence was that Henry was never the owner of the land. In the plea, the defendants relied on a RA2 signed by Job and Karl bearing the date July 2007, while they subsequently, at trial, relied on a different RA2, which was dated May 2004 and certified in July 2005.
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The RA2 relied on by the defendants at trial was only investigated after the trial was postponed.
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The plaintiffs’ understanding of the facts and the law and their explanations are not without criticism. Their erroneous persistence with the rei vindicatio should not result in them being prohibited from correcting their mistake and ventilating the real dispute between the parties. Furthermore, the defendants are not blameless for the plaintiffs’ erroneous persistence with the rei vindicatio.
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The defendants, in their plea:
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denied that the alienation by Henry of his undivided share of the farm to the defendants contravened the consent conditions;
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referred to a transaction between Henry and Paulus within their jointly owned and undivided portion (the ordonans);
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pleaded that Henry was removed as co-owner, he was of sound mind at the time of alienation, he signed a deed of alienation to sell, alternatively, donate, the ‘disputed land’ to the defendants, Henry and the defendants verbally agreed that he be paid N$40 000 as compensation for the alienation, Henry signed a koopbewys dated 27 July 2005, and Henry signed a second koopbewys indicating that he received ‘the outstanding amounts due to him’; and
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denied that Henry received no remuneration for the alienation of the ‘disputed land’ from the defendants.
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The defendants’ plea signifies that Henry was a co-owner at some stage. However, during Karl’s cross-examination, it was put to him that Henry was never an owner and a different RA2 was relied on (the RA2 dated May 2004, certified on 11 July 2005) than the one referred to in the plea (the RA2 dated July 2007). That sparked the plaintiffs’ need to amend. The plaintiffs submitted that since the defendants did not, in their plea, rely on the RA2 dated May 2004, certified on 11 July 2005, the fraud was not introduced in the pleadings and only arose during trial. According to the plaintiffs, that shift raised concerns about the credibility of the defendants’ defence. They further submitted that the plea represented that the land was transferred from Henry to Paulus, and on that basis, they persisted with the rei vindicatio at the time. The plaintiffs contend the defendants’ denial that Henry was the lawful owner and plea that they are the owners meant that Henry is not the owner since he sold his share to Paulus.
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If found that the transfer to the defendants was effected directly from the estate, the pleaded facts do not support the relief sought. The facts do not support reliance on the rei vindicatio. Job was advised to still seek a declarator but not based on the rei vindicatio but on the basis that the underlying and real agreements are void.
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Job further explained as follows:
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Henry used to reside with his parents. His mother passed away in 1994, and his father in 2002. Job never realised the extent of Henry’s cognitive ability impairment. He thought Henry could manage his own affairs with assistance, understanding and appreciating the consequences of his decisions, but he was simply a bit slow. In 2002, while attending to his late father’s estate affairs, he managed the transfer of the undivided portions of the farm to the beneficiaries under his late father’s will. He completed and signed all requisite documents, including two forms related to the transfer for all his brothers, specifically the RA2 forms for Henry and Paulus. Job and Karl requested Paulus to assist Henry, who resided with him at the time, in signing his RA2 form at the Master’s office. They presumed that the transfers were executed as instructed by the will and believed that Henry’s portion was transferred to him. In 2021, doubt arose when Job’s suspicion was prompted by Henry disclosing that Paulus threatened him with eviction from the farm unless he complied with his demands. That culminated in the plaintiffs launching the action in October 2021. At the time, it appeared to them that the portion that was supposed to be transferred to Henry was transferred from the estate to Henry and then to Paulus, and so they averred that Henry was the rightful owner and that the unlawfully transferred portion must be returned to him. Job attended to the Master’s office before summons was issued to uplift the estate file to investigate the events, but the file was missing, and Henry’s recollection of events was unreliable. In a consultation with counsel in January 2022 with Henry present, counsel advised that a psychiatrist be approached to assess Henry’s cognitive abilities.
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The assessment was done in May 2022, and a clinical psychologist found that Henry has limited capacity to consider and understand complex abstract concepts like legal agreements and their probable future implications, he is likely to consent to contracts or arrangements as he is agreeable and unassertive and would be motivated to receive other’s approval by agreeing, it is highly unlikely that he comprehends the full extent of such agreements and he is vulnerable to exploitation. It was recommended that his financial affairs be appointed to a curator. Based on an expert witness report, Job concludes that Henry lacked the mental capacity when he concluded any alleged agreement with the defendants. On application by Job and Karl, the court appointed a curator ad litem and a curator bonis for Henry.
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The court has a discretion (to be exercised judicially) to allow or refuse amendments. Amendments may be brought at any stage of the proceedings before judgment.6 On proper explanations, amendments may be brought after trials commenced, including cross-examination. Leave to amend should be given unless parties act mala fide or, by their blunder, they did some injury to opponents that costs cannot compensate (that is if the parties cannot be returned for the purposes of justice to the same position they were in when the pleading it is sought to amend was filed).7
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It cannot be said that the intended amendment is mala fide or an abuse of process. Although open to criticism, a plausible and reasonably satisfactory explanation was provided as to why the amendment became necessary at such a belated stage of the proceedings, and good grounds exist for allowing it.
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Parties must be allowed to ventilate what they believe the real issues are. The court’s function is to adjudicate the real dispute between them, and its object is to do justice. The court must see the real position between the parties and not look at technicalities. It would not be in the interest of justice to hold the plaintiffs to the rei vindicatio, which does not represent their case. That position is supported by common cause facts. Allowing the amendment would enable the court to adjudicate the real dispute between the parties.
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The previous leave to amend application concerned a different intended amendment and was refused for reasons irrelevant to the current application. The plaintiffs considered the ruling to the previous leave to amend application and made necessary allegations in the current intended amendment that was previously absent.
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The defendants failed to establish that the intended amendment is gainsaid by evidence already led. Only one witness (Karl) testified for the plaintiffs. Other witnesses must still be called to testify. Karl is still under cross-examination. The defendants can cross-examine him on the intended amended particulars of claim.
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The intended amendment does not amount to a change of front. It would remove from the particulars of the claim what does not represent the plaintiffs’ case and add what does to support the relief sought. Save for the fact that Henry is not and was never an owner, the plaintiffs’ intended factual basis for their claim is different but not the opposite of what they already relied on. The mistake about Henry’s ownership was explained. Considering the plea and the impression it created, the defendants are not blameless for that mistake and the timing of the intended amendment.
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The fact that an amendment of the pre-trial order is not sought should not be a basis for refusing the amendment. If allowed, the court would be empowered to amend the pre-trial order.8
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Cases should be disposed of speedily and inexpensively. This case was, however, instituted in 2021 already. The defendants did not argue that the plaintiffs were to blame for the overall delay. The delay caused by the intended amendment was explained.
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The defendants’ prejudice is not such that costs (if awarded) cannot compensate. The parties can return, for the purposes of justice, to the same position they were in when the particulars of claim sought to be amended was filed. The rules allow the defendants to amend their pleadings consequentially. The court will allow the parties to supplement their witness statements and file a revised proposed pre-trial order.
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The fifth ground of the objection is not upheld.
Conclusion
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The objection is not upheld, and the court exercises its discretion to allow the intended amendment.
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The plaintiffs contend that costs should follow the event. The defendants contend the plaintiffs seek an indulgence and they should pay the costs uncapped under rule 32(11).
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The general rule is that costs follow the event, but it does not apply to successful applications where indulgences are granted, like leave to amend applications. Under High Court Rule 52(8), unless the court otherwise orders, the plaintiffs are liable to pay the costs occasioned by the notice of amendment. However, the fact that an amendment is sought does not necessarily mean that an indulgence is sought. In Bedford v Uys,9 it was held that the granting of an amendment arising from averments in the plea cannot represent an indulgence.
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The plaintiffs illustrated that the plea contributed to their persistence with the rei vindicatio, that the need to amend was sparked by the defendants’ reliance during trial on a RA2 not relied on in the plea and the disclosure at trial that the land was transferred from the estate directly to the defendants. The defendants did not explain their conduct, except to argue that the claim was based on the rei vindicatio, and stating what the plaintiffs had to prove after the defendants pleaded that they are the owners. The defendants lost sight that the plaintiffs’ claim was not only for the return of the land to Henry based on the rei vindicatio. They also claimed that the land transfer to the defendants be cancelled and that the land be transferred to Henry because the transfer to the defendants was unlawful for several reasons. The intended amendment does away with the rei vindicatio and expands on why the transfer was unlawful. If the defendants pleaded that they acquired transfer directly from the estate and if they did not plea that Henry was removed as co-owner, the plaintiffs may have amended the particulars of claim shortly after having received the plea. In those circumstances, it is questionable whether the application represents an indulgence.
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Arguably, the plaintiffs should never have included the rei vindicatio in their cause of action.10 The defendants should not have opposed the plaintiffs’ intention to abandon that part of their cause of action, nor should they have raised grounds one, two and three of the objection, which had no merit. Grounds four and five of the objection were unsuccessful. By agreement, the plaintiffs were ordered on 17 April 2024 to pay the defendants N$164 000 for wasted costs occasioned by the trial’s postponement. On 17 June 2024, they were ordered to pay the defendants’ costs in the previous leave to amend application, capped by rule 32(11).
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Job, Karl, Henry and Paulus are brothers. The plaintiffs’ and the defendants’ conduct contributed to the costs occasioned by the amendment.
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In those circumstances, costs should be costs in the cause (if any).
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In conclusion, it is ordered that:
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The applicants are granted leave to amend their particulars of claim as per their notice of intention to amend dated 20 August 2024.
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The amended particulars of claim must be delivered on or before 23 January 2025.
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The parties must deliver a joint status report on or before 30 January 2025 with suggested delivery dates for consequentially amended pleadings (if any), supplementary witness statements (if any), and a revised joint proposed pre-trial order.
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Costs are costs in the cause (if any).
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The pre-trial conference scheduled for 22 January 2025 is replaced with a status hearing to be held on 5 February 2025 at 08:30.
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The matter under INT-HC-AMDPLEA-2024/00719 is finalised and removed from the roll.
__________________ |
B DE JAGER |
Judge |
APPEARANCES
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APPLICANTS: |
M Noelle Of Veiko Alexander & Company Incorporated Windhoek
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RESPONDENTS: |
J P Ravenscroft-Jones Instructed by Leezhel Mouton & Associates Incorporated Windhoek
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1 Januarie v Januarie (HC-MD-CIV-ACT-OTH-2021/03840) [2024] NAHCMD 325 (17 June 2024).
2 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para 10.
3 China Henan International Cooperation (Pty) Ltd v De Klerk and Another 2014 (2) NR 517 (HC) para 15 (referring to McKenzie v Farmers' Co-operative Meat Industries Ltd 1922 AD 16 at 23).
4 Basfour 2482 (Pty) Ltd v Atlantic Meat Market (Pty) Ltd and Another 2011 (1) NR 164 (HC) para 12 (referring to Wavecrest Sea Enterprises (Pty) Ltd v Elliot 1995 (4) SA 596 (SE) at 600H-601D).
5 Hartzenberg v Standard Bank Namibia Ltd 2016 (2) NR 307 (SC) paras 27 and 28.
6 Rule 52(9).
7 Teichmann Plant Hire (Pty) Ltd v RCC MCC Joint Venture (I 1216/2015) [2018] NAHCMD 2 (17 January 2018) para 27 (referring to Whittaker v Roos and Another 1911 TPD 1092) and paras 28 and 29 (referring to Tidesley v Harper 10 Ch.D 393 at 396).
8 Rules 18(4) and 26(8).
9 Bedford v Uys 1971 (1) SA 549 (C) at 554.
10 Tjamuaha and Another v Master of the High Court and Others 2018 (3) NR 605 (SC).
Cited documents 4
Act 2
1. | Agricultural (Commercial) Land Reform Act, 1995 | 257 citations |
2. | Prescription Act, 1969 | 132 citations |