Court name
High Court Main Division
Case name
IA Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC
Media neutral citation
[2014] NAHCMD 306
Judge
Damaseb J
Hoff J
Ueitele J










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: I 601/2013 &





Case
no: I 4084/2010





DATE:
17 OCTOBER 2014





REPORTABLE








In
the matter between:






I A BELL
EQUIPMENT COMPANY (NAMIBIA) (PTY)
LTD.............................PLAINTIFF




And





ROADSTONE
QUARRIES
CC........................................................................DEFENDANT





Neutral
citation:
I A Bell Equipment Company
(Namibia) (Pty) Ltd v Roadstone Quarries CC
(I
601-2013 & I 4084-2010) [2014] NAHCMD 306 (17 October 2014)





Coram:
DAMASEB, JP, HOFF, J and UEITELE, J


Heard:
13 March 2014


Delivered:
15 October 2014






Flynote:
Interlocutory – Amendment of pleading brought late in the
proceedings – Counsel advanced reasons that a possible
amendment became apparent only when senior counsel became involved at
the late stage of the case and that prejudice suffered by the
respondent can be cured with a cost order –Where an amendment
to withdraw admissions is sought , a reasonable explanation for
change of front is required, such reason must be bona fide and there
must be special circumstances to allow parties to resile from a court
order – With the advent of judicial case management – A
judge-controlled civil litigation – the
common law position that a party may amend at any stage of
proceedings as long as prejudice does not operate to the prejudice of
the opponent remains, save that, like every other procedural right,
it is also subject to the objectives of the new judicial case
management regime applicable in the High Court – This places
obligations on legal practitioners to through early and thorough
preparation identify real issues in dispute for the speedy and
expeditious finalization of the matter – New approach to be
adopted is that in the exercise of its discretion, court must observe
parties’ rights to state their case at any stage and to amend
pleadings, even withdraw admissions in a pre-trial order – Such
variation of pleadings subject to the presumption that pleadings
drawn on instructions of the client - If amendment based on a
mistake, such mistake must be bona fide – Court cannot hold
parties to a version which no longer represents its stance –
Ultimate aim is to allow parties to ventilate the real issues between
them and the interest of the administration of justice.






ORDER


1.
The proposed amendment of the plea to the
claim in reconvention and revision of the pre-trial order of 25 June
2013 and the associated application for condonation for the late
filling, are deferred to be decided at the trial together with the
merits if still persisted with;


2.
The costs of the opposed application to
amend stands over for determination together with the merits;


3.
The applicant is ordered to pay the
respondent’s costs occasioned by the opposition to the
abandoned joinder application and the application to add further
causes of action;


4.
The trial of the matter shall proceed on
the pleadings as they stood on 16 September 2014; and



5.
The matter is enrolled for status hearing
on
21 October 2014 at 14h15
for allocation of new trial dates and for further directions.






JUDGMENT


DAMASEB,
JP (HOFF, J AND UIETELE, J CONCURING):


[1]
At the outset I must extend an apology to the parties for the delay
in handing down judgment in this interlocutory application to amend
pleadings.  Amendments have lately become problematic in this
court and the impact judicial case management has (or has not) on
them has become a source of controversy and differing judicial
opinion. It was the reason for my empanelling a full court.[1]

After
we heard argument on 13 March 2014, I had to give the matter some
careful consideration in the light of our case law since the advent
of judicial case management and also to consider comparative
jurisprudence for guidance - hence the delay.







[2] The present
application brought by the plaintiff in the main action and who is
also the defendant in reconvention, commenced as an opposed
application to (a) join a third party, add additional causes of
action and (b) to amend pleadings in order to withdraw admissions
made in a plea to the defendant’s counterclaim. During the
course of argument, the applicant conceded that the application for
joinder and to add new causes of action was ill-conceived and would
no longer be pursued. Mr Strydom, for the applicant, further conceded
that the respondent was entitled to the costs occasioned by its
opposition to the ill-fated application. Such an order will therefore
be made.



[3] What remained
for the court to consider is the application to amend the plea in
reconvention. The application to amend was brought late in the course
of proceedings as will soon become apparent. It is common cause that
the proposed amendment scuppered the trial which was scheduled for
the period 16 -19 September 2013.



State of
pleadings at time of proposed amendment


[4]
It will be conducive to clarity to first set out the state of
pleadings as at the date the matter was ripe to proceed to trial. In
the original declaration[2]
dated 10 May 2011, the plaintiff claimed payment of the agreed
purchase price of N$ 128,000 for front-end loader tyres sold and
delivered by it to the defendant during October 2010. The plaintiff
alleged that the defendant had taken delivery of ‘a number of
tyres’ but failed or neglected to pay for them. Although the
plaintiff immediately (ie on 28 July 2011) amended the declaration,
the substance remained the same: ie that the defendant had taken
delivery of four tyres but failed, upon being invoiced, to pay the
cost of the tyres in the amount of N$ 128 000. The defendant
requested further particulars to the amended declaration in the
following terms:


The
defendant requests the following further particulars to the amended
declaration:


1.
In paragraph 5 it is alleged that the terms
stated were “
inter alia”
agreed upon between the parties. What
is meant by this? A full explanation is required.


2.
What were the full terms of the
agreement between the parties?


3.
Which terms were written and which terms
were oral?


4.
The full specifications of the alleged
tyres are required with reference to the make, the size and the type.


5.
Were the tyres supplied loose or fitted to
rims?


6.
How were the tyres delivered, loose or
fitted to an implement?’ (my underlining for emphasis)


[5]
Significantly[3], the plaintiff
chose to be evasive and not to clearly answer the questions posed in
the request for further particulars. It answered the questions in the
following terms:


1.
AD PARAGRAPH 1 THEREOF:


The
pleaded terms constitute the material terms of the agreement between
the parties.


2.
AD PARAGRAPH 2 THEREOF:


The
particulars sought are not strictly necessary to enable the defendant
to plead thereto and are accordingly refused.


3.
AD PARAGRAPH 3 THEREOF:


Invoice
(No 67175) constitutes the written part of the agreement between the
parties.


4.
AD PARAGRAPH 4 THEREOF:


The
particulars sought are not strictly necessary to enable the defendant
to plead thereto, alternatively is a matter for evidence and are
accordingly refused.


5.
AD PARAGRAPH 5 AND 6 THEREOF:


The
particulars sought are not strictly necessary to enable the defendant
to plead thereto and are accordingly refused.’



[6] As can be seen,
the plaintiff answered only one of the questions posed and, in
particular, refused to answer the question that asked it to provide
the ‘full terms of the agreement between the parties’.
That raises the obvious question if at this early stage already the
plaintiff’s legal practitioners (both instructing and
instructed) took the necessary instructions from the client as
regards the requested ‘full terms of the agreement between the
parties’. I raise this issue at this early stage because it is
relevant to what I say later in support of the result I arrive at on
the present dispute.



[7] The initial plea
dated 11 November 2011 was itself not a model of clarity. Except for
admitting the identities of the plaintiff and the defendant and the
representatives of the parties, each and every one of the allegations
were denied: Thus, it was denied that an agreement was entered into,
that tyres for a front-end loader were sold and delivered, that the
defendant took delivery of them or that it failed to pay for them. An
amended plea was however filed on 14 June 2012 from which the
defendant’s defence to the plaintiff’s claim can be
summarised as follows:


(a)
The purchase price was denied, although it
was admitted that on or about April 2010 plaintiff at the specific
instance and request of the defendant delivered four new front-end
loader tyres.


(b)
The method by which plaintiff was to
invoice the defendant, and that payment was to be made within one
month of invoice, was also denied.







(c)
Delivery was admitted but it was pleaded
that the plaintiff was indebted to the defendant in the amount of N$
774,000 in respect of damages allegedly occasioned by plaintiff and
that any amount due to plaintiff was set off by the defendant’s
liquidated debt due and payable as at 1 May 2010.



[8] The defendant’s
claim is fleshed out in the counterclaim accompanying the plea and in
essence alleges that the tyres delivered to it by the plaintiff,
contrary to an express representation to that effect by the plaintiff
and his employees or representatives, did not meet the specifications
agreed between the parties. The result, the counterclaim alleges, was
that the tyres did not perform as expected once fitted to the
defendant’s front-end loader, resulting in the front-end loader
not being deployed for the defendant’s business operations and
the defendant suffering resultant losses in the amount claimed.



Plea to
counterclaim


[9]
In its counterclaim dated 14
September 2012 the plaintiff in reconvention alleged as follows:


1.
During or about November 2008 telephonically and in person Mr. Harold
van Druten on behalf of the Defendant entered into negotiations with
Mr. Johan van Wyk acting on behalf of Plaintiff to set in motion the
purchase of a Bell L20606 Front-end Loader.


2.
During these negotiations as well as physical inspection on a site at
kilometre 10 Tsumeb-Tsintsabis Road Mr. Harold van Druten
specifically informed Mr. Johan van Wyk, by pointing to Mr. Johan van
Wyk on the site, that Defendant needs a Front-end Loader which is
similar in size to the Caterpillar 966 Front-end Loader which
Defendant was using on site at the time. Mr Harold van Druten further
made in (sic) unequivocally  clear to Mr. Johan van Wyk that the
Front-end Loader Defendant required must have the same quality
tyres as L5 Firestone Tyres which can operate under quarry conditions
on hard sharp edged rock as was clear on the site they were at.


3.
Mr Harold van Druten further informed Mr. van Wyk that the
Caterpillar Front-end Loader they were using on site had, at that
stage, worked more than 6000 hours with the same tyres in the same
rocky conditions.


4.
At these meetings, and more specifically the meeting on site, Mr.
Johan van Wyk stated, on behalf of Plaintiff, that the Bell L2606
Front-end Loader Plaintiff sells will be more than able to adhere and
conform to all the requirements of the Defendant, as specified by Mr
Harold van Druten and more.


5.
Mr. Harold van Druten had two separate dinner meetings with Mr.
Wolfgang Schweiger at the Minen Hotel in Tsumeb where he on both
occasions also informed Mr. Wolfgang Schweiger of Defendant’s
requirements
should it set in motion the purchase of the Bell
L2606 Front-end Loader from Plaintiff and on both occasions Mr
Wolfgang Schweiger also confirmed, as Mr Johan van Wyk did, that
their Front-end Loader will be able to adhere and conform to all the
requirements of the Defendant and more.


6.
During or about 26 November 2008 Mr Harold van Druten accompanied Mr.
Johan van Wyk to the bell Equipment offices in Jet Park,
Johannesburg, South Africa, and they met with a certain Mr. Terry
Gillham where Mr. Harold van Druten again reiterated the
requirements of Defendant in using the Bell L2606 Front-end Loader at
all times acquiesced to all statements made by Mr. Terry Gillham to
Mr. Harold van Druten regarding the conformity and adherence of the
Bell L2606 Front-end Loader to the specific requirements of the
Defendant.


7.
The representation made by the Plaintiff to Defendant relating to
the tyres were material
as Mr. van Druten expressly stated to Mr
Van Wyk, Mr. Wolfgang Schweiger and Mr. Terry Gillham that the
Defendant could not afford the Front-end Loader not being operational
at all times as the Defendant would suffer a loss of income.


8.
Due to the aforementioned representations made by Plaintiff’s
representatives the Defendant set in motion and the conclusion of the
purchase of the Bell L2606 Front-end Loader from Plaintiff by
Defendant’s bank, being Bank Windhoek.’

 
(My underlining
for emphasis)



[10] The above are
the defendant’s allegations which preface its counterclaim
against the plaintiff to the effect that within the first 100 hours
of work the front-end loader purchased from the plaintiff developed
complications and became ‘inoperable’, causing the
defendant ‘financial harm’.



[11] In its plea to
the defendant’s counterclaim dated 14 September 2012, the
plaintiff denies making any false representations to the defendant or
that defendant suffered any financial loss as a result of defendant’s
purchase of the four tyres. It however made the following admissions
in paragraphs 2 and 3 of the plea to the counterclaim:


AD
PARAGRAPH 2 THEREOF:


2.1
Apart from denying that defendant was using a Caterpillar 966
front-end loader on site at the time,
plaintiff
admits the content of the remainder of this paragraph.[4]


2.2.
Plaintiff pleads that defendant was making use of a Caterpillar 938
front-end loader at the time.



AD PARAGRAPHS 3-9
THEREOF


The
content thereof is
admitted.[5]
 
(My
underlining for emphasis)



The proposed
amendment



[12] The
plaintiff applied to amend its declaration and the plea to the
counterclaim on 20 September 2013, about a year after the original
declaration and plea were filed.
With
regard to the plea to the counterclaim
, the plaintiff seeks to
withdraw admissions relating to the discussions that occurred between
the plaintiff and the defendant’s representatives at the site
relating to the requirements of the front-end loader which, according
to the plaintiff, did not include the suitability of the tyres in
question. The plaintiff further seeks to deny that the
representations made by the plaintiff to the defendant as regards the
requirements and suitability of the front-end loader was material or
that it would be responsible for any loss resulting from the
front-end loader not being operational.


[13]
The defendant immediately objected to the amendment on the basis that
the proposed amendment would render the declaration excipiable as it
did not disclose a cause of action on the allegations pleaded.[6]
As regards the proposed amendment to the plea to its counterclaim,
the defendant objected on the grounds that the intended amendment
constitutes a withdrawal of admissions confirmed by agreement between
the parties and reflected in the parties’ ‘Proposed
Pre-trial Order’ which was made an order of court on 25 June
2013. The pre-trial order in relevant part reads as
follows:



All
relevant facts not in dispute


i.
The citation
of the parties;


ii.
That plaintiff
was represented by Mr Johan Van Wyk and defendant by Mr Von Druten;


iii.
That the
plaintiff delivered 4 new front-end loader tyres to defendant during
April 2010;


iv.
That defendant
received plaintiff’s invoice annexure “A”


v.
That defendant
refuses to pay to plaintiff the amount of N$ 125 800 as claimed by
the plaintiff;


vi.
That during or
about November 2008 telephonically and in person Mr Harold van Druten
on behalf of the defendant entered into negotiations with Mr Johan
Van Wyk on behalf of the plaintiff to set in motion the purchase of a
bell L2606 front-end loader;


vii.
That during
these discussions as well as a physical inspection on the site at
kilometre 10 Tsumeb – Tsintsabis road Mr Harold van Druten
specifically informed Mr Johan van Wyk, by pointing to Mr Johan van
Wyk on the site, that defendant need a front-end loader which is
similar in size to the specific front-end loader which defendant was
using on the site at the time (the plaintiff maintains that it was a
caterpillar 938)


viii.
That Mr Harold
van Druten made it unequivocally clear to Mr van Wyk that the front
end loader defendant required must have the same quality tyres as L5
firestone tyres which can operate under quarry conditions on hard
sharp edge rock as was clear on the site they were at;


ix.
That Mr Harold
van Druten further informed Mr van Wyk that the caterpillar front end
loader they were using on site had, at that stage, worked more than
6000 hours with the same tyres in the same rocky conditions.


x.
That at these
meetings, and more specifically this meeting on site, Mr Johan van
Wyk stated , on behalf of the plaintiff, that the Bell L2606
front-end load plaintiff sells will be more than able to adhere and
conform to all the requirements of the defendant, as specified by Mr
Harold van Druten and more.


xi.
That Mr Harold
van Druten had two separate dinner meetings with Mr Wolfgang
Schweiger at the Minnen  in Tsumeb where he on both occasions
also informed Mr Wolfgang Schweiger of defendant’s requirements
should it set in motion the purchase of the Bell L2606 front-end
loader from plaintiff and on both occasions Mr Wolfgang Schweiger
also confirmed, as Mr Johan van Wyk did, that their front-end loader
will be able to adhere and conform to all the requirements of the
defendant and more;


xii.
That during or
about  26 November 2008 Mr Harold van Druten accompanied Mr
Johan van Wyk to the Bell Equipment offices in Jett Park Johannesburg
South Africa and they  met with a certain Mr Terry Gillham where
Mr Harold van Druten again reiterated the requirements of defendant
in using the Bell L2606 front-end loader. At this meeting and
thereafter Mr Gillham also confirmed to Mr Harold van Druten that the
Bell L 2606 front-end loader will conform to all the requirements of
defendant. Johan van Wyk at all times acquiesced to all statements
made by Mr Terry Gillham to Mr Harold van Druten during to the
conformity and adherence of the Bell L2606 front-end loader to the
specific requirements of the defendant;


xiii.
That the
representation made by the plaintiff to the defendant relating to the
tyres were material as Mr van Druten expressly stated to Mr van Wyk,
Mr Wolfgang Schweiger and Mr Terry Gillham that the defendant could
not afford the front-end loader not being operational at all times as
the defendant could suffer a loss of income;


xiv.
That due to
the aforementioned representations made by plaintiff’s
representatives the defendant set in motion and the conclusion of the
purchase of the Bell L2606 front end loader from plaintiff by
defendant’s bank, being Bank Windhoek;


xv.
That the Bell
L2606 front-end loader was delivered to the defendant on or about the
9
th
of July 2009.


xvi.
That a burst
front-end loader tyre caused the front-end loader of plaintiff to be
inoperable which caused defendant financial harm.


xvii.
That the
defendant concluded a suspensive sale agreement with bank Windhoek
for the purchase of the front-end loader; and


xviii.
That Mr van
Wyk and Mr Wolfgang Schweiger are both employees of the plaintiff and
at all relevant times acted within the course and scope of their
employment.’



[14] The defendant’s
stance is that the plaintiff cannot withdraw such admissions without
rescinding the court’s pre-trial order. This
position is correct in view of the then applicable rule 37(14) which
stipulated that issues, evidence and objections not set out in the
pre-trial order are not available to the parties at the hearing. I am
satisfied though that subrule 37(17) is wide enough as to bestow a
discretion on the managing, on good course shown, to vary a pre-trial
order ‘so that only the real issues between the parties …are
determined at the trial’. The new rule dispensation is even
clearer on the court’s discretion in regard to a pre-trial
order. Rule 26(10) states that:



Issues
and disputes not set out in the pre-trial order will not be available
to the parties at the trial, except with the leave of the managing
judge or court granted on good cause shown’
.



[15] Not
surprisingly therefore, the plaintiff on 9 October 2013 launched a
formal application to amend the plea to the counterclaim as well as
the pre-trial order, which application was subsequently heard by a
full bench of this court on 13 March 2014. The application was served
two days late and condonation is also sought.



[16] On behalf of
the plaintiff / defendant in reconvention, it is conceded that the
amendment sought involves the withdrawal of admissions, the reasons
advanced for the withdrawal being that the admissions were
erroneously made and do not conform to the client’s
instructions to instructed counsel, Mr Small, who prepared the plea
filed of record on 14 September 2012. It is alleged that it was only
on 5 August 2013, during  consultation between Mr Small, and his
newly-briefed senior, Mr Strydom, and the applicant’s
witnesses, that it came to light that the initial plea was defective.
Mr Small who deposed to the affidavit in support of the application
apologised for the mistake and stated under oath that granting the
amendment would reflect the true instructions of the applicant and
would ultimately result in pleadings that would facilitate the proper
ventilation of the issues between the parties. He stated that the
defendants would suffer no prejudice that cannot be cured by a costs
order. The plaintiff’s employees or officers with personal
knowledge of the facts did not either confirm on oath Mr Small’s
assertions or depose independent affidavits explaining the alleged
misunderstanding between them and Mr Small and how it came about.



Brief
history of the matter and instructed counsel’s involvement


[17]
The summons was issued on 8 March 2011, the particulars whereof were
settled
by
Theunissen, Louw and Partners on 10 May 2011
.
The action was duly served on 2 April 2012, pleadings closed on 02
November 2012 and the first pre-trial conference took place on 25
June 2013. The matter was called on 7 February 2012 for initial case
management conference and the plaintiff was represented thereat by Mr
Small who similarly appeared for the plaintiff on 13 March 2012 and
22 May 2012 at the pre-trial and status hearing respectively. A
notice that pleadings had closed[7]
was filed of record on behalf of the plaintiff on 2 November 2012 and
Mr Small appeared at two further status hearings on the 5
th
and 12
th
February 2013, when, on the latter date, the present matters were
consolidated. Mr Small still appeared for the plaintiff on 26
February 2013 when the trial dates were set for 20-23 May 2014. On 9
April 2013 Mr Small was still on record for the plaintiff when the
trial dates were
vacated
and
new trial dates set for 16-19 September 2014.



[18] Mr Strydom then
came on record on 16 September 2013 and applied for a postponement,
advancing as the main reasons for the
postponement the grounds that the plaintiff wishes to amend the
declaration and the plea to the counterclaim.
The plaintiff
sought this amendment on 20 September 2013, about a year after the
original declaration and plea were filed. An
objection was raised to the proposed amendment on 26 September 2013
and the application to amend was launched on 9 October 2013. It is
that proposed amendment that falls for determination in the present
proceedings.



[19] To
recapitulate: It is alleged in justification of the proposed
amendment that it was only after Mr Strydom was briefed that the
mistake necessitating the proposed amendment was discovered.



Parties’
submissions



Applicant/
plaintiff



[20] On behalf of
the applicant /plaintiff, Mr. Strydom submitted that the practice of
our courts is to grant amendment of pleadings for the proper
ventilation of a dispute between the parties, however neglectful or
careless the first omission may have been or however late the
amendment sought is. Counsel argued that an amendment should be
allowed as long as there is no incurable prejudice to the other party
either by way of a costs order or a postponement. He accepted that
the withdrawal of an admission is not more readily allowed as it
involves a change of front and that prejudice to the other party is
self-evident. Counsel also accepted that a full explanation is
required for the withdrawal of an admission and maintained that
courts would readily condone and grant an amendment sought on the
ground of a misunderstanding by the legal adviser.



[21] In an attempt
to marry the law to the facts, Mr. Strydom submitted that because Mr
Small did not consider it necessary at the time of drafting the plea
to deny the allegations of the defendants, particularly those
allegations pertaining to the suitability  of the front-end
loader tyres and that the mistake was only discovered during
preparation for discovery and trial, the reason for the proposed
amendments was bona fide and that any prejudice suffered by the
respondent would be cured by a costs order. Counsel further
submitted that the proposed amendment is an attempt to rectify a
mistake that was discovered late and that it would be in the interest
of justice to allow it. Mr Strydom submitted
it would be a
grave injustice, if, on account of an error of judgment on Mr Small’s
part, the applicant is penalised.



Respondent/
plaintiff in reconvention



[22] On behalf of
the respondent/plaintiff in reconvention, Mr. Barnard argued that the
amendments sought seek to withdraw an admission that representations
on the quality of the tyres fitted to the front-end loader were
indeed made. Counsel further submitted that the principles relied on
by counsel for the applicant are no longer applicable to amendment
applications with the advent of judicial case management. He argued
forcefully that, with the introduction of judicial case management, a
pre-trial order that has been made an order of court has the same
force as any other agreement and that parties should not be allowed
to resile from such agreements without good cause being shown. He
added that to allow parties to undo their concurrence to confine
issues would fundamentally undermine the objectives of case
management, cause delay and unnecessary expense, compromise the
efficient use of scarce judicial resources and unduly lengthen
proceedings with the consequent cost implications for the parties and
the administration of justice.


[23]
Mr Barnard relied on authorities[8]
emanating from this court to the effect that an amendment sought
after the pre-trial stage stands at a different footing to an
amendment sought before the pre-trial stage and that a party must
make out a good case for a proposed amendment or there must be a
‘compelling’ and ‘persuasive explanation’ for
the change. He submitted that the court’s pre-trial order stood
on the same footing as a commercial agreement and that it should
stand unless reconsidered, varied or rescinded on good cause
shown.[9]



[24] According to Mr
Barnard, the reasons advanced on behalf of the applicant/plaintiff
for the change of front and the late amendments are not bona fide.
 Additionally, he stated that the facts in this matter
indicate no special circumstances and that there is no good cause
shown to allow the applicant to resile from the pre-trial order and
that the application for the proposed amendments should be dismissed,
with costs.



[25]
There is an understandable uncertainty about the impact of the new
rules of court on amendments to pleadings, especially those brought
after close of pleadings, after pre-trial order, just before or
during the course of a trial. The case law I will soon refer to
accentuates that uncertainty. It was therefore necessary for me to do
some comparative research to place the matter in proper perspective.
I will next set out the common law relative to amendments, sketch a
comparative law background and set out what I consider to be the
proper approach to amendments with the advent of a judge-controlled
civil litigation system.







The
common law position on amendments


[26]
The common law regime governing amendment of pleadings was very lax
in Namibia before the introduction of judicial case management (jcm) 
- a civil litigation process in which: (a) a judge controls the pace
of litigation; (b) the parties are required to cooperate with the
court to, through early and thorough preparation, identify the real
issues in dispute (both as to law and fact); (c) the interest of the
administration of justice requires that costs are limited as far as
possible and that hearings take place on the dates assigned by the
court for a matter; (d) parties are required to make early and
automatic discovery without the need for being called upon to do
so.[10]



[27]
The pre-jcm culture placed great accent on the so-called litigant-
freedom in the conduct of litigation. Thus, the core inquiry in
an amendment dispute was whether the proposed amendment ventilated
the real dispute between the parties and whether any prejudice was
occasioned thereby to the opponent. The Namibian Supreme court
pointed out in
DB
Thermal (Pty) Ltd and Another v Council of the Municipality of City
of Windhoek[11]
at
para 38:


The
established principle that relates to amendments of pleadings is that
they should be “allowed in order to obtain a proper ventilation
of the dispute between the parties … so that justice may be
done”, subject of course to the principle that the opposing
party should not be prejudiced by the amendment if that prejudice
cannot be cured by an appropriate costs order, and where necessary, a
postponement.[12]


[28]
In South Africa, Watermeyer, J reflected the widely held view in
Moolman
v Estate Moolman
[13]
that:


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 the purposes of justice in the same position as they
were when the pleading which it is sought to amend was filed’
.


[29]
As was famously put in
Macduff
& Co (in liquidation) v Johannesburg Consolidated Investment Co
Ltd[14]
:


My
practice has always been to give leave to amend unless I have been
satisfied that the party applying was acting mala fide, or that, by
his blunder, he has done some injury to his opponent which could not
be compensated for by costs or otherwise.’



And:


However
negligent or careless may have been the first omission and however
late the proposed amendment, the amendment should be allowed if it
can be made without injustice to the other side. There is no
injustice if the other side can be compensated by costs.


[30]
In Australia, the attitude of the court to amendments was no
different to the pre- April 2011[15]
approach of our courts to amendments. Put simply, that attitude was
that parties are allowed to amend pleadings at any stage of the
proceedings in order to ventilate the real issues between them as
long as: (a) there was no prejudice to the opponent and (b) such
prejudice could be cured by an appropriate cost order. A classic
statement of the principle is
Queensland
v JL Holdings Pty Ltd

[16] in which the court held
that justice between the parties was the ‘paramount’
consideration in determining an application to amend pleadings and
that an application to amend should be granted so long as it raised
an ‘arguable issue’ and any prejudice to the respondent
could be compensated by costs. The court also stated that no
principle of case management can be allowed to supplant the ‘court’s
ultimate aim of the attainment of justice’. That approach was
said in later judgments to hamstring the court’s ability to
effectively manage cases.[17]


[31]
The occasional murmur[18]
about the interests of the administration of justice in such an
inquiry was not properly, coherently or consistently articulated and
did not reflect what the courts do in practice. The obligations of
the lawyer in the conduct of litigation and the harmful impact that
an amendment may have to the expeditious finalisation of a case and
the general interest of the administration of justice, received scant
recognition. Frankly, what public confidence is inspired by a system
which makes it possible for a party represented by a lawyer to place
a particular version of facts and law before court only to come back
and say, look that is not really what my case is, the true position
is now this or that? That is understandable to limited extent but not
where it represents a complete volte-face. The practices adopted by
the courts should avoid creating the impression that litigation is
some sort of game and that parties can, without good reason, change
their positions as they go along and as circumstances suit them.



Change
in landscape with the advent of Judicial Case Management.



The AON Approach
in Australia


[32]
In
Aon
Risk Services Australia Ltd v Australian National University
[19]
(AON),
the court was called upon to consider a late amendment of a pleading
against the backdrop of a rule on amendment which provides[20]
that all ‘necessary’ amendments
must
be
made for the purposes of: (a) deciding the ‘real issues’
in the proceeding; and (b) avoiding multiple proceedings; and one[21]
which provides that, at any stage of a proceeding, the court
may
give
leave to or direct a party to amend a court document in the way it
considers appropriate. Rule 21(1) states that the purpose of the
Rules is ‘to facilitate the just resolution of the real issues
in civil proceedings with minimum delay and expense’ and Rule
21(2) states that, accordingly, the Rules are to be applied to
achieve: (a) the ‘just resolution of the real issues in the
proceedings’; and (b) the ‘timely disposal’ of the
proceedings, and all other court proceedings, at a cost affordable by
the parties.’






[33]
Our own rule on amendments at the relevant time stated as follows:






28(8)
The court may during the proceedings at any stage before judgment
grant leave to amend any pleading or document on such terms as to
costs or otherwise as to it seem meet.’ 







[34] The plaintiff
in AON sought to amend its particulars of claim at the
beginning of trial stating that the amendment was sought based on
information received during mediation and which could not be
disclosed to the court. Overruling JL Holdings, Australia’s
highest court of appeal held in AON that:


An
application for leave to amend a pleading should not be approached on
the basis that a party is entitled to raise an arguable claim,
subject to payment of costs [and that there] is no such entitlement.
All matters relevant to the exercise of the power to permit amendment
should be weighed. The fact of substantial delay and wasted costs,
the concerns of case management will assume importance’.[22]



The court took the
view that ‘limits may be placed upon re-pleading, when delay
and costs are taken into account’. The court also made clear
that ‘case management considerations may sometimes - and not
only in “extreme circumstances” ’– require
that a party be shut out from raising an arguable claim.






[35]
The
AON
court
identified the following as relevant to the court’s exercise of
the judicial discretion to allow an amendment:[23]
(a) the extent of delay in seeking leave and its associated costs;
(b) the point the litigation has reached:

applications
brought during the time set for trial or that require vacating trial
dates are less likely to be granted; (c) the prejudice to the
respondent if leave is granted – including the financial and
emotional ‘strain’ of ongoing litigation, which even a
costs indemnity may not heal; (d) the prejudice to other litigants
and the efficient use of court resources:
 that
is, the court held that the ‘just’ resolution of disputes
is not limited to justice between the parties, but requires account
to be taken of other litigants; (e) the applicant’s explanation
for the delay; (f) the ‘nature and importance’ of the
amendment to the applicant; and (g) the ‘need to maintain
public confidence in the judicial system’.






[36]
Therefore, ‘an appropriate costs order heals all’
approach has now been resoundingly rejected in Australia. Leave to
amend pleadings was refused in AON by the highest court in the
land because the trial court and the intermediate appeal court
disregarded case management considerations in the exercise of the
court's jurisdiction to grant or disallow amendments, and rather
based the decision on the traditional grounds of the need to do
substantial justice between parties and the curing of prejudice by a
postponement and an appropriate costs order. The court held that the
following factors ought to have been had regard to in refusing the
application to amend:






a)
The proposed amendment sought to introduce very late in the
proceedings substantial new claims which would require the opponent
to re-craft their defence from the beginning;


b)
The application was brought at a time set down for trial and a
postponement would scupper the remaining days of trial;







c)
An award of costs would not overcome the prejudice to the opponent
from substantial delay and the necessity to defend new claims;







d)
The applicant who had throughout had full knowledge of the facts on
which it now sought to rely offered no explanation for the delay in
timeously seeking the amendment;


e)
Allowing the amendment and postponing the matter would delay the
hearings of other litigants and undermine public confidence in the
administration of justice.







[37]
It is now accepted in Australia, whose legal system also embraces
case management and in the rules calls for ‘quick, inexpensive
and efficient justice’, that the old permissive and liberal
attitude to amendment of pleadings is inimical to the ethos of case
management which have shifted the emphasis from ‘doing
substantial justice between parties’, to the interests of the
administration of justice overall - of which doing justice between
the parties is but one consideration.






[38]
Since
AON,
Australian courts have disallowed amendments brought during the
hearing and those that would necessitate vacating the hearing[24];
and amendments which would substantially increase the length, cost
and complexity of proceedings due to the introduction of substantial
new issues.[25]






[39]
Australian decisions emphasise though that judges must avoid using
the discretion to disallow amendments punitively[26]
and that allowance must be made for the complexity of matters and for
changes which inevitably occur in litigation.[27]
Therefore,  amendment was allowed where it was sought at an
early stage of the proceeding and when trial dates had not yet been
allocated[28]; did not raise
new issues but only sought to prosecute or clarify existing
claims[29]; where the
amendment would save time and costs later in the proceedings[30];
where there is no or little prejudice to the opponent which cannot be
cured by an order of costs or a postponement[31];
where it is possible to discount the prejudice to the opponent on
account of its inaction or non-compliance[32]
; where, upon discovering the mistake, the party seeking the
postponement burns the midnight oil and immediately brings it to the
attention of the court[33];
and greater indulgence is given to self-represented litigants[34]
although such indulgence is not unlimited.[35]







The
unchanged position







[40]
The right to amend pleadings at any
stage of the proceedings has not been removed by the rules of court
either before or in the new rules. The rule operative when this
dispute arose reads as follows:







28(8):
The court may during the hearing at any stage
before judgment grant leave to amend any pleading or document on such
terms as to costs or otherwise as to it seems meet.’






The present rule
reads as follows:






52(9):
The court may during the hearing at any stage before judgment, grant
leave to amend a pleading or document on such terms as to costs or
otherwise as the court considers suitable or proper.’


[41]
I now proceed to consider some decided cases since the introduction
of case management.


[42]
In
Coertzen
v Neves Legal Practitioners[36],
Parker,
AJ refused an application to amend particulars of claim after the
plaintiff closed its case and before an application for absolution
could be heard. The learned judge reasoned that the rule that the
court may during the hearing (of an application for leave to amend)
at any stage before judgment grant leave to amend a pleading is a
rule in its generality. Accordingly, it does not mean that ‘leave
to amend’ can be obtained merely for the asking. The judge
observed that a litigant seeking an amendment is in fact
craving
an indulgence

and must offer some explanation for why the amendment is required
and, more especially, if the application for amendment is not
timeously made, some reasonably satisfactory account for the delay
must be provided, more so as the litigant had enough time during case
management to amend any pleadings. On its facts the result reached by
the learned judge is sound.


[43]
Again, in
Jin
Casings & Tyre Supplies CC v Hambabi[37]
Parker
AJ confirmed the ratio of
Coertzen
v Neves Legal Practitioners
and
dismissed an application to vary the terms of a pre-trial order.
Additionally, he reasoned that the parties’ proposed pre-trial
order, upon which a pre-trial conference order was issued,
constituted a ‘compromise through and through’ and had
the effect of
res
judicata

which is binding on the parties. Thus, the learned judge held that by
signing the proposed pre-trial order the legal practitioners
signified their assent to the contents thereof based on the principle
of
caveat
subscriptor
and
if the contents subsequently turn out not to be according to
instructions, as is in that case, the party had no one but itself to
blame.[38]






[44]
Although as I point at later, I am in general agreement with the
approach that late amendments and revision of pre-trial orders must
be discouraged, I wish to caution that it should not be elevated to a
rule of law and that each case must be considered on its facts. 
If a bona fide mistake has been made by a
lawyer in correctly representing the client’s version in the
pleadings or a pre-trial order, it would be manifestly unjust to hold
the party to a version which does not reflect the true dispute
between the parties. But that is by no means the end of the matter as
the very fact of the alleged mistake and the subsequent attempt to
change front may well go to the merits of the matter overall in that
a finding that it was not bona fide could well undermine a party’s
case and strengthen the probabilities in favour of the opponent.






[45]
In
Loubser
v De Beers Marine Namibia (Pty) Ltd,
Geier,
J rejected
res
judicata

as a valid basis for objecting to an amendment and variation of a
pre-trial order. The approach adopted by the learned judge was that
to make a pre-trial order binding would render meaningless the courts
inherent power to grant amendments; that a pre-trial order should be
able to be varied, most importantly,
in
order to expedite the determination of the real issues between the
parties; that a managing judge may, on good cause, at any stage at
any status hearing, case management hearing or at trial allow or
order amendments to the pleadings so that the real issues between the
parties and not mere technicalities are determined at the trial. The
court observed that expeditious determination of any interlocutory
issue forms part of the objectives of case management, which were not
intended to prevent the parties from ventilating the real issues to
be determined at the trial. Accordingly, if a party makes out a case
in accordance with the applicable principles pertaining to
amendments, that, on its own, will, or should, go a long way to
persuade a court that
good
cause
,
as is required by rule 37(17), has been shown, even if this
necessitates the variation of a pre-trial order, which may, in the
interim, have been made by the court on the strength of the parties’
pre-trial proposal.[39] This
approach commends itself if applied in keeping the principles we
propose later in this judgement.


[46]
Geier J’s approach was revisited in
Scania
Jinance Southern Africa (Pty) Ltd v Aggressive Transport CC[40]

where Smuts, J pointed out the impact of judicial case management on
applications to amend. The learned judge stated that the objectives
of judicial case management are, inter alia, to identify issues in
dispute at an early stage which brings about obligations for parties
and their legal practitioners to assist the managing judge in
curtailing proceedings by confining the issues of fact and law which
are in dispute between the parties resulting in the pre-trial order
to be prepared by the parties. The same rules also cautions that
issues, evidence and objections not set out in a managing judge’s
pre-trial order are not available to the parties at the trial or
hearing. Smuts, J further pointed out that where parties have elected
to limit the ambit of a case by agreement, the election is usually
binding and that a party cannot resile from an agreement of that
nature without the acquiescence of the other party or the approval of
the court on good cause shown. He further pointed out that:

This
approach has now been trenchantly reinforced by rule 37(14) when a
matter is the subject of case management and for good reason. 
The parties have after all agreed upon the issues of fact and law to
be resolved during the trial and which facts are not to be disputed.
That agreement, as occurred in this matter, is then made an order of
court.  Plainly, litigants are bound by the elections they make
when agreeing upon which issues of fact and law are to be resolved
during the trial and which relevant facts are not in dispute when
preparing their draft pre-trial order.  It is after all an
agreement to confine issues which is binding upon them and from which
they cannot resile unless upon good cause shown. It is for this
reason that the rule-giver included rule 37(14). To permit parties
without a compelling and persuasive explanation to undo their
concurrence to confine issues would fundamentally undermine the
objectives of case management. It would cause delays and the
unnecessary expense of an interlocutory application and compromise
the efficient use of available judicial resources and unduly lengthen
proceedings with the consequent cost implications for the parties and
the administration of justice.’[41]



[47] Smuts J’s
approach and that adopted by Geier J are not irreconcilable. Smuts, J
refused an application to amend a plea to introduce a new defence at
an advantaged stage of the trial action between the parties after the
plaintiff had adduced evidence and closed its case and after the main
witness for the defendants had testified. The result reached by the
learned judge is no different to the one I would have come to faced
with the same facts and resonates with the proper approach we propose
in this judgment.


[48]
The common thread that runs through the judgments of this court is
that a late amendment and change of font calls for an explanation.
For example, in
Moongold
Properties CC v The Estate Agents Board[42]
and
Ondangwa
Hardware CC v Ndahafo & Filhos[43]
Smuts,
J, pointed out that where an amendment involves withdrawal of an
admission, the parties seeking to do so must, when an objection is
raised, provide a full explanation so as to convince the court of the
bona
fides

of seeking the amendment.[44]
In my view, the explanation offered for the amendment and its timing
by the party seeking the amendment is no less important and could
well be decisive.







The unchanged
position


[49]
The unchanged position under the rules of court at the time the
matter was argued and now is that an amendment may be granted at any
stage of a proceeding and that the court has discretion in the
matter, to be exercised judicially. The common
law position that a party may amend at any stage of proceedings as
long as prejudice does not operate to the prejudice of the opponent
remains, save that, like every other procedural right, it is also
subject to the objectives of the new judicial case management regime
applicable in the High Court. That includes the imperative of speedy
and inexpensive disposal of causes coming before the High Court.







The proper
approach


[50]
Namibia embraced judicial case management in April 2011[45]

with
the introduction of a new rule 37 which, for the first time in our
nation’s history, placed the control of the pace of litigation
in the hands of judges, with , inter alia, the following
objectives[46]: (a) to ensure
the speedy disposal of any action or application, (b) to promote the
prompt and economic disposal of any action or application, (c) to use
efficiently the available judicial, legal and administrative
resources, (d) to identify issues in dispute at an early stage, (e)
to curtail proceedings, and (f) to reduce the delay and expense of
interlocutory processes. Rule 1B imposed an obligation on the parties
‘to assist the managing judge in curtailing the proceedings’.


[51]
It is idle to suggest, against the above background, that judicial
case management has no impact on the parties’ rights to amend
pleadings. The basis upon which the courts in the past decided the
principles relating to amendments did not take into account the ethos
of judicial case management. The new ethos of judicial case
management was described in the following terms by Ncgobo AJA in
Aussenkehr
Farms (Pty) Ltd v Namibia Development Corporation Ltd:[47]


[89]
The main purpose of JCM is to bring about a change in litigation
culture. The principal objectives of JCM are to: ensure that parties
to litigation are brought as expeditiously as possible to a
resolution of their disputes, whether by way of adjudication or by
settlement; increase the cost effectiveness of the civil justice
system and to eliminate delays in litigation; promote active case
management by the courts and in doing so, not only facilitate the
expeditious resolution of disputes, but also bearing in mind the
position of other litigants and the courts' own resources; and
inculcate a culture among litigants and their legal representatives
that there exists a duty to assist the court in furthering the
objectives of JCM.


[90]
With the advent of the JCM rules where all parties to the proceedings
have the obligation to prosecute the proceeding and assist the court
in furthering the underlying objectives, it would be highly relevant
to consider any inaction on the part of the parties. And there is no
place for defendants to adopt the attitude of 'letting sleeping dogs
lie' and for a defendant to sit idly by and do nothing, in the hope
that sufficient delay would be accumulated so that some sort of
prejudice can then be asserted.’






[52]
Against the backdrop of the introduction of judge-controlled civil
litigation in Namibia, the approach relative to an amendment aimed at
withdrawing an admission was correctly stated by Smuts, J in
Scania
Jinance South Africa (Pty) Ltd v Aggressive Transport CC

[48] in the passage quoted at
para 46 of this judgment.






[53]
In preparation for trial, witnesses are precognised by reference to
their own witness statement, those of the opposing side and the
discovered documents.  They are also mentally prepared for the
impending ‘ordeal’: Every trial lawyer knows the fear of
God that the prospect of cross examination drives in lay witnesses.
This is what is called the ‘strain’ of litigation which a
costs order alone does not sufficiently address. When a postponement
occurs, this strain is repeated. Next time round, as not seldom
happens in practice, another counsel takes charge of a matter and the
process starts afresh with its attendant complications. It is that
uncertainty about our civil practice which undermines public
confidence in the legal system and which trial judges must guard
against.






[54]
I wish to record at the outset that I find the ratio and underlying
reasoning of
AON
and
the subsequent cases[49] that
followed it persuasive as it reflects the new ethos of our civil
litigation process. Guided generally by the Australian jurisprudence
which I embrace, and specifically by the ratio of
AON
and the new dispensation ushered in by our judge-controlled civil
litigation process, I now proceed to set out what I consider should
be the proper approach to amendment applications.






[55]
Regardless of the stage of the proceedings where it is brought, the
following general principles must guide the amendment of pleadings:
Although the court has a discretion to allow or refuse an amendment,
the discretion must be exercised judicially. An amendment may be
brought at any stage of a proceeding. The overriding consideration is
that the parties, in an adversarial system of justice, decide what
their case is; and that includes changing a pleading previously filed
to correct what it feels is a mistake made in its pleadings. Although
concessions made in a pre-trial order are binding on a party, being
an admission, they can be withdrawn on the same basis as an
admission made in a pleading. Facts admitted in case management
orders are not that easily resiled from than those in pleadings: 
that is so because a legal practitioner is presumed, because of the
new system which requires them to consult early and properly, to have
done so and committed a client to a particular version only after
proper consultation and instructions. That presumption entitles the
opponent to rely on undertakings made by the opponent and to plan its
case accordingly. A litigant seeking the amendment is craving an
indulgence and therefore must offer some explanation for why the
amendment is sought. Amendments take different forms and vary from
the simple and obvious typographical or arithmetic, to the more
substantial such as change of front or withdrawal of an admission.
Given the latter reality, one cannot apply the same test to proposed
amendments. The case for an explanation why the amendment is sought
and the form it will take will also be determined by the nature of
the amendment. The less significant the amendment, the less the
formality for the explanation. For example, why should a
typographical error be explained on oath? The more substantial an
amendment, the more compelling the case for an explanation under
oath. A reasonably satisfactory explanation for a proposed amendment
is strongest where it is brought late in proceedings and or where it
involves a change of front or withdrawal of a material admission. In
the latter instance, tendering wasted costs or the possibility of a
postponement to cure prejudice is not enough. The interests of the
administration of justice require that trials proceed on dates
assigned for the hearing of a matter. If the proposed amendment is
justified on the ground that it arose from a mistake, the mistake
relied on must be bona fide and will only be allowed if good grounds
exist for allowing the amendment. Although a litigant does not itself
have to explain on oath the basis of an alleged mistake necessitating
an amendment, its failure to do so may in an appropriate case be held
against it if the explanation by the legal practitioner does not
disclose good grounds for the alleged mistake or the necessity for
the amendment.  An amendment that is not opposed or one that is
minor will invariably be granted. What is the court to do when a
party says: ‘well, true I said that in the past; I am sorry but
it was said in error: My case is in fact the opposite of what I
earlier stated; alternatively; I wish to completely change the basis
of my case? A court cannot compel a party to stick to a version
either of fact or law that it says no longer represent its stance.
That is so because a litigant must be allowed in our adversarial
system to ventilate what they believe to be the real issue(s) between
them and the other side. The difficulty arises if the change of front
is opposed by the other side. In that situation the change of front
becomes the real issue between the parties; for although the court
has no power to hold a party to a version that it seeks to disown, it
is entitled to hold against it, as being an afterthought, the fact
that it has withdrawn late in the day a concession consciously and
deliberately made or to change a front persisted with for
considerable time in the life of the case. The explanation offered
for the proposed change, or lack of it, may well go to credibility
and the overall probabilities of the case.  The court has the
following avenues open to it in such a case: (a) if a party has
failed to provide an explanation on oath or otherwise in
circumstances where one was called for, the proposed amendment must
be disallowed. (b) If a party provides an explanation that is not
reasonably satisfactory or is lacking in bona fides, the court may
disallow the amendment especially if it is opposed and has the
potential to compromise a firm trial date. (c) Where the court is
inclined to allow an amendment although opposed, it must defer it for
consideration together with the merits if the fact of the amendment
becomes the real issue between the parties. Whether or not the
alleged mistake necessitating the amendment is genuine; or put
another way: whether or not the alleged mistake necessitating the
amendment is bona fide and not an afterthought may in certain
circumstances become the real issue between the parties. A court may
well come to the conclusion that it is an afterthought on account of
its lateness and the deliberate manner and surrounding circumstances
in which it was originally made and persisted with. It is then bound
up with the probabilities of the case. A very substantial change of
front or withdrawal of a concession previously made in such
circumstances becomes the real dispute between the parties. The
appropriate course then is to defer the proposed amendment and,
through cross examination by the opposing side, determine the bona
fides of the withdrawal when, ultimately, it decides the
probabilities. In that process the truthfulness or otherwise of the
version of the party making a withdrawal becomes no less an important
consideration. Change of front and wholesale amendment of pleadings
and pre-trial orders, especially late in proceedings may, in an
appropriate case - especially when it is not properly explained -
undermine the credibility of a party’s version. If that looms
as a possibility or a reasonable inference from the affidavits
relating to the opposed amendment, the court must consider deferring
the proposed amendment and require the party to deal with it together
with the merits. This approach has the advantage that the party
opposing the amendment can though cross-exanimation challenge the
bona fides of the alleged mistake and demonstrate that there in fact
was no mistake in the way the matter was pleaded and that the claim
or plea as it stood accords with the respondent’s version of
events and that it should, for that reason, succeed on the disputed
issues as the probabilities are in its favour. (d) The imperative of
speedy and inexpensive justice may in an appropriate case justify the
denial of an amendment if it was necessitated by demonstrably poor
preparation or lack of practitioner diligence which will have the
effect of frustrating the early disposal of the case and therefore
the administration of justice. (f) The discretion to disallow late
amendments must not be exercised punitively, and each case must be
considered on its facts, balancing the need to do justice between the
parties by ensuring that the court allows them to ventilate the real
issues between them, and the interests of the administration of
justice. It has become common practice in our courts for parties to
bring substantial amendments on the eve of trial, fully aware it is
going to be opposed, and in that way effectively secure a
postponement. I cannot think of a practice that is more pernicious
and subversive of the proper and orderly administration of justice
than that. Such applications must therefore be entertained only in
the rarest of cases. As the authors of
Herbstein
& van Winsen

correctly argue[50], the
notice procedure[51] is in any
event not applicable to such applications and parties must not be
allowed to use it to scupper set down trials. Rather, if a party
contemplates late amendment or an amendment that is likely to
compromise trial dates, it must, after informing the opponent in
writing about the details of the proposed amendment, seek directions
from the managing judge in terms of rule 32(4)-(10), for the court to
allow the bringing of the amendment. The managing judge may, in line
with the approach we set out in this judgment and after entertaining
representations from the parties, refuse to entertain the proposed
amendment; or he or she may give directions for the filing of papers
for him or her to determine the proposed amendment, and before the
trial actually takes place.







Guidelines
and obligations of legal practitioners under Judicial Case Management



[56] The applicant’s
explanation in justification of its proposed withdrawal of the
admissions confirmed in both the plea to the counterclaim and the
pre-trial order,  makes it necessary to lay down some guidelines
and to highlight the obligations resting on legal practitioners,
which will aid the smooth and effective management of cases under our
new judicial case management system.






[57]
I am alive to the reality of our practice that the legal practitioner
of record often drafts the first pleadings and much later in the
process briefs instructed counsel to take control of a client’s
case and to take the matter to trial. In that situation, instructed
counsel has the duty to acquaint himself/ herself immediately with
all aspects of the client’s case and to ensure in particular
that he or she consults with the client or its key role players to
ensure that they are satisfied with the state of the pleadings. It is
a dereliction of duty for instructed counsel not to do so and to rely
solely on what is provided to them by instructing counsel. It is
certainly unacceptable for instructed counsel to settle any further
pleadings in the matter or to settle case management reports and
pre-trial orders without prior consultation with the client.






[58]
A legal practitioner is an agent of the client. The source of his or
her authority and mandate is the client. It is for that reason
assumed that when a legal practitioner files a pleading or makes
undertakings to the court, he or she has the necessary authority and
mandate to do so. If that were not so, our litigation process will be
afflicted by uncertainty. The legal practitioner therefore has a
special duty to make sure that his or her conduct of the client’s
case accords with instructions. It is a breach of an ethical duty not
to do so and the surest way of making sure that does not happen is to
take a detailed statement from the client at the first consultation;
meet the client again to take instructions in relation to pleadings
of substance received from the opponent; confirm with the client
admissions and denials made in either pleadings or case management
reports, especially the pre-trial report which binds the parties to
admissions and denials made for the purpose of trial. It is not
unusual that in cross-examination litigants, when confronted with
allegations made on their behalf in pleadings, express surprise.
Courts, as they are entitled to do, make adverse inferences against a
litigant when that happens. It therefore places a duty on a legal
practitioner to ensure that his or her client not only understands
the pleadings, but owns up to what is said on their behalf.






[59]
The system of judicial case management in which practitioners are by
law required from an early stage in the life of a case to limit
issues and identify the real issues for determination by the court
has the undoubted merit, and therefore imposes the duty on the
practitioner, to consult early, thoroughly and to obtain all relevant
evidence from the client. That must, of necessity, limit the number
of mistakes by counsel on account of not properly understanding a
client’s version. It is that logic that informs the ratio in
Scania
Jinance Southern Africa (Pty) Ltd v Aggressive Transport CC[52]
and
Jin
Casings & Tyre Supplies CC v Hambabi.[53]






[60]
If legal practitioners punctiliously follow the guidelines set out
above, the instances where major changes to pleadings are sought at
an advanced stage of a case will be few, except for situations
involving genuine misunderstandings and minor
amendments which, human nature being what it is, it would be
unwise to legislate against.






[61]
The purpose of my highlighting these obligations is based on what, as
managing judges, we experience in practice and which, for the most
part, accounts for the myriad of amendments to pleadings just before
a matter proceeds to trial. Managing judges must be astute in future
in ascertaining whether a failure to comply with the obligations set
out herein has occasioned the amendment sought. If indeed such
failure had that result, it makes the case for late amendment the
more unwarranted and therefore unlikely to be allowed.






[62]
During argument of this matter, the court reminded counsel that based
on our experience as judges, there is a very high incidence of
postponement of trial actions in this jurisdiction and that the
majority of such postponements are the result of amendment of
pleadings just before trial.  As will soon become apparent from
the facts of this case, there is nothing inevitable or inherently
natural about amendments:  it is invariably the function of poor
preparation and lack of practitioner diligence. I say so based on our
daily experience as trial judges.







Identified proper
approach applied to the facts







[63]
Given the late stage at which the amendment is sought in the present
matter, the applicant had the duty to offer a satisfactory
explanation for the amendment which, being the withdrawal of an
admission, cannot be had for the asking. It is apparent from the way
Mr Small’s affidavit is crafted that

the
plaintiff’s representatives were not apprised of the pleadings
as they stood on the two occasions that the matter was set down for
trial and, one assumes, instructed counsel then acting for it could,
or ought to, have consulted properly with all witnesses in
preparation for trial. How else can one construe the explanation that
the pleadings prepared by him do not reflect the client’s
instructions?  The applicant has made a curious choice of only
relying on an explanation of its legal practitioner instead of that
of an office bearer who bears personal knowledge of the facts which,
it is said by the lawyer, constitute its defence to the plaintiff’s
claim. The deponent is the very same legal practitioner who
supposedly made a mistake in putting forward a version in the
pleadings which is now disavowed by the applicant. The applicant
therefore places itself in the enviable position that on a future
date it can advance the argument that the position as at present
advanced does not reflect the correct position.  That is
prejudicial to the respondent. Although it is permissible for a legal
practitioner, instead of the client, deposing an affidavit explaining
how an error was made during consultations and thus necessitating the
amendment,[54] the explanation
offered by the practitioner must be satisfactory. For the reasons
that I will now set out, the explanations offered by Mr Small are not
satisfactory and the failure by the applicant to itself come on oath
raises a strong inference of lack of bona fides of the alleged
mistake relied on for the proposed amendment. What we have before us
therefore is a mere say-so by Mr Small that a mistake was made in the
way he pleaded the plaintiff’s case but not confirmed by the
client – let alone an explanation how it happened.


[64]
As is apparent, the representations allegedly made by the plaintiff
to the defendant are repeated in seven paragraphs (2- 8). That the
plaintiff’s counsel could have settled the plea thereto without
taking specific instructions beggars belief and, in any event, raises
the question whether the alleged mistake is bona fide or an
afterthought. I say so because, in essence, the plaintiff had in the
plea to the counterclaim conceded a substantial part of the
defendant’s case in reconvention, leaving only to be proved the
breach and the quantum. Most significantly, the very same admissions
were recorded as undisputed fact in the pre-trial order. The
improbability that counsel could have settled a plea (and reiterate
it in the pre-trial order) in those terms without clear instructions
seems apt, it appears to me, to be tested under cross-examination.
That is only possible at a trial on the merits. That is so because
the court can grant an amendment at any stage of proceedings before
judgment. As the learned authors of Erasmus’
Superior
Court Practice
[55]
correctly sum up the common law by reference to decide cases:


Applications
for amendments have been entertained and allowed after both sides
have closed their cases, during the hearing of an application for
absolution and in certain cases even after the conclusion of
argument’
.


[65]
The proper approach to amendments set out above does not affect the
practice that an amendment may, all things being equal, be allowed
during the hearing of evidence,[56]
after the conclusion of evidence[57]
or even after argument has been heard.[58]
The rules governing when an amendment may be allowed are so
permissive that it is also possible on appeal.[59]
That is of course no license for seeking late amendments. The
principles are subject to a party properly justifying the late
amendment based on the proper approach set out above.



[66] Reverting to
the case at hand, it still remains open to the court after the
parties’ versions had been fully and comprehensively ventilated
at trial and properly tested under cross-examination, to grant or
refuse the proposed amendment. No trial prejudice is occasioned
thereby because the plaintiff is now put on notice that it will be
required to deal with its proposed amendment together with the merits
so as to lay the evidential basis for the amendment it seeks and
therefore run its case on the basis that the admissions were
erroneously made – except, of course, that the defendant is
entitled to challenge that version.


[67]
The nature of the amendments sought and the absence of a satisfactory
explanation for the alleged error in my view has made the bona fides
of the proposed amendment the real issue between the parties. The
proposed amendment has become inextricably interwoven with the merits
of the matter. Therefore, the present dispute is best resolved by
keeping the proposed amendment in abeyance, allowing the parties to
proceed on the pleadings as they stand and affording the applicant
the opportunity, if so advised, to, through evidence on the merits,
lay the evidential basis for the amendment, subject to the
respondent’s right to cross examine. In order to avoid
prejudice to the respondent, it is matter which legitimately the
plaintiff ought to be challenged on under cross examination as it is
the very basis of each side's case. The safest route to follow in
such circumstances is not to deny the proposed amendment but to
conflate it with the merits so that the party seeking the amendment
can be properly tested on cross-examination as to the bona fides of
the alleged mistake.






[68]
In coming to this conclusion, it is not lost on me that our
litigation system is premised on the foundation that a legal
practitioner informs the client about the pleadings he or she
prepares and files on behalf of the client, especially
any concessions made in the name of the client. The notion that
both instructing and instructed counsel never shared the same with
the client either before or after the concessions were made in its
name is one that is difficult to accept and required confirmation by
the client under oath. I am further fortified in that conclusion by
the applicant’s failure to, on oath by its office bearers,
confirm the fact that Mr Small had incorrectly made admissions on its
behalf in the pleadings.



[69]
The result I propose therefore is that the proposed amendment be kept
in abeyance and that the applicant is allowed, if so advised, after
the evidence had been led at the trial to move it on the same papers,
duly amplified if need be. The costs, in so far as it was not already
tendered by the applicant, in respect of the proposed amendment also
stands to be reserved and to be considered when the proposed
amendment is considered alongside the merits of the matter.







Order








[70] In the premise,
it is ordered that:


1.
The proposed amendment of the plea to the
claim in reconvention and revision of the pre-trial order of 25 June
2013 and the associated application for condonation for the late
filling, are deferred to be decided at the trial together with the
merits if still persisted with;


2.
The costs of the opposed application to
amend stands over for determination together with the merits;






3.
The applicant is ordered to pay the
respondent’s costs occasioned by the opposition to the
abandoned joinder application and the application to add further
causes of action;


4.
The trial of the matter shall proceed on
the pleadings as they stood on 16 September 2014; and



5.
The matter is enrolled for status hearing
on
21 October 2014 at 14h15
for allocation of new trial dates and for further directions.






P
T Damaseb






Judge-President


I
agree,





E
PB Hoff,






Judge









I agree,






S
Ueitele





Judge






APPEARANCES


Applicant:
JAN Strydom (Assisted by AJB Small)


Instructed
by: Theunissen, Louw & partners






Respondent:
PC Barnard


Instructed
by: Du Plessis, Roux, De Wet & partners







[1]
In terms of s 10(1)(a) of the High Court Act, 1990 (Act 16 of 1990).




[2]
The action was commenced under the old rules of court which allowed
the simple summons procedure under rule 17.




[3]
Significantly because, had they been provided, it would considerably
have narrowed the real dispute between the parties at this early
stage and would have helped counsel properly consult with the client
in order to take full instructions about the terms which have now
become the subject of dispute.




[4]
Thus admitting the representations repetitively set out and
expressly relied on by the plaintiff in reconvention.




[5]
Ditto.




[6]
This
is the aspect conceded by the plaintiff in argument to be bad in
law, and which Mr Strydom withdrew and tendered wasted costs.




[7]
This is the next crucial stage at which the plaintiff’s
practitioners had the opportunity to assure themselves that their
pleadings accorded with the client’s instructions, yet the
crucial step was taken to now move the case forward to trial.




[8]
Scania
Finance Southern Africa (Pty) Ltd v Aggressive Transport CC (I
3499/2011) [2014] NAHCMD 57 (19 February 2014).




[9]
Compare
Stuurman
v Mutual & Federal Insurance Company of Namibia Limited 2009 (1)
NR 331 (SC) and Bella Vista Investments v Pombili and Another 2011
(2) NR 694 (HC).




[10]
The new rules contain an overriding objective in rule 3 and in rule
18 gives power to the court to manage cases filed at the court and
rule 19 imposes obligations on the parties in relation to litigation
being conducted in the High Court. All these provisions clearly go
against the notion of a litigation system whose core function is
‘justice between the parties to litigation’ and place
the broader public interest of the administration of justice as a
central plank of our civil litigation process.




[11]
(SA
33-2010)[2013]NASC 11(19 August 2013).




[12]
See
further
Trans-Drakensberg
Bank Ltd (under judicial management) v Combined Engineering (Pty)
Ltd and Another
1967
(3) SA 632 (D) at 638A.




[13]
1998
(1) SA 53 (W) p 56.




[14]
1923
TPD 309.




[15]
When judicial case management was for the first time introduced in
Namibia.




[16]
(1997)
189 CLR 146.




[17]
Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA
1623 (26 October 2007) [3] – [5].




[18]
As,
for instance, Flemming DJP J did in Bankorp Ltd v Anderson- Morshead
1997 (1) SA 251 (W) at 253.




[19]
(2009) 239 CLR 175.




[20]
Rule 501 of the Court Procedures Rules 2006 (Act)




[21]
Rule 502(1).




[22]
AON (2009) 239 CLR 175,217, per Gummow, Hayne, Crennan, Kiefel and
Bell JJ.




[23]
AON at 218.




[24]
Compare Nolan v MBF Investments Pty Ltd (No 3) [2009] VSC 457 (14
October 2009); Ehsman v Nutectime International Pty Ltd [2009] NSWSC
909 (28 August 2009); Sagacious Legal Pty Ltd v Wesfarmers General
Insurance Ltd (No 2) [2010] FCA 275 (March 2010); MM Constructions
(Aust) Pty Ltd v Port Stephens Council (No 1) [2010] NSWSC 241 (23
March 2010);




[25]
Compare
Nolan v MBF Investments Pty Ltd (No3) [2009] VSC 457 (14 October
2009) [36] Pacific Exchange Corpn Pty Ltd v Federal Commissioner of
Taxation (2009) 180 FCR 300,311; and Ginger Roger Pty Ltd v Parella
Enterprises Pty Ltd (No 2) [2010] FCA 128 (24 February 2010) [27].




[26]
Environment East Gippsland Inc v Vicforests (Ruling No 2) [2010] VSC
53 (25 February 2010); Tinworth v WV Management Pty Ltd [2009] VSC
553 (3 December 2009) [35].




[27]
Chaina v Presbyterian Church (NSW) Property Trust (No 3) [2009]
NSWSC 1243(23 November 2009) [51] per Hoeben J; Multi-Service Group
Pty Ltd v Osborne [2010] QCA 72 (26 March 2010) [32].




[28]
Scantech Ltd v Asbury [2009] FCA 1480(11 December 2009) [41]-[42];
QBE Insurance (Aust) Ltd v Westpoint Reality [2009] NSWSC 1298 (16
November 2009) [14] ; Gerard Cassegrain & Co Pty Ltd v
Cassegrain [2010] NSWSC 91 (19 February 2010) [24]-[25]; Major v
Woodside Energy Ltd (No 4) [2009] WASC 248 (8 September 2009)[54];
Hartnett v Hynes [2009] QSC 225 (11 August 2009) [22].




[29]
Gerard Cassegrain supra; Scantech supra; Zonebar Pty Ltd v Global
Management Corpn Ltd [2010] QSC 67 (15 March 2010) [58]; Pascoe v
Boensch [2009] FCA 1240 (3 November 2009) [79].




[30]
Gerard
Cassegrain
, supra.




[31]
Fletcher v St George Bank [2010] WASC 75 (20 April 2010) [28]




[32]
Beverage Bottlers (SA) Ltd (in liq) v Adobe Enterprises (Pty) Ltd
[2009] SASC 272 (3 September 2009) [168], [132] per Kourakis J.




[33]
Namevski Developments Pty Ltd v Rockdale City Council [2010] NSWLSEC
7 ( 5 January 2010) [17]; Genworth Financial Mortgage Insurance Pty
Ltd v Peter Clisdell Pty Ltd




[34]
Grivas v Harrison [2010] NSWSC 208 (18 March 2010) [10];




[35]
Markisic v Commonwealth [2010] NSWSC 24 (25 February 2010) [205];
Pond v Thurga (No2) [2009] FamCA 1241 (2 December 2009) [16].




[36]
(I
3398/2010) [2013] NAHCMD 283 (14 October 2013), p 4, para 5.




[37]
(I
1522/2008) [2013] NAHCMD 215 (25 July 2013).




[38]
Page 6, para 11.




[39]
(I
341/2008) [2013] NAHCMD 382 (26 September 2013)
,
p 14-15.




[40]
(I
3499/2011) [2014] NAHCMD 57 (19 February 2014).




[41]
Para 26.




[42]
(I
982/2011) [2013] NAHCMD 30 (4 February 2013).




[43]
(I
4162/2011) [2013] NAHCMD 100 (15 April 2013).




[44]
Cilliers, A.C., Loots, C & Nel, H.C. 2009.
Herbstein
and Van Winsen: The Civil Practice of the High Courts of South
Africa

fifth edition. Cape Town: Juta & Co, 683; Compare 
 Andreas
v La Cock and Another
[44]
where
the court pointed out that:


.
. . . an explanation for the amendment and the timing thereof needs
to be given on affidavit. A party seeking an amendment therefore
runs the risk of being denied an amendment if no explanation is
given on affidavit and the Court is unable properly to exercise its
discretion. In certain circumstances, even a satisfactory
explanation from the Bar may suffice.’




[45]
Government Notice 57 published in the Government Gazette No. 4709 of
13 May 2011.




[46]
Rule 1A.




[47]
2012 (2) NR 671 (SC) at 698.




[48]
(I 3499/2011)[2014]NAHCMD 57 (19 February 2014)




[49]
For example: Cleary Bros (Bombo) Pty Ltd v Waste Recycling &
Processing Corpn [2009] NSWSC 1248 (19 November 2009) [6]; Public
Trustee, South Australia v Commonwealth [2009] NSWSC 1008 (25
September 2009) [36].




[50]
At
p. 676.




[51]
In the old rules contained in rules 28(1)–(6) , and in the new
rules contained in 52(1) –(9).




[52]
(I
3499/2011) [2014] NAHCMD 57 (19 February 2014).




[53]
(I
1522/2008) [2013] NAHCMD 215 (25 July 2013).




[54]
Compare
Van
Zyl and Maritz NNO v South African Special Risks Insurance
Association 1995 (SA) SA 331 at 339A-B.




[55]
B1-186B, Service 7 1997.




[56]
Ferreira Deep Ltd v Olver 1903 TS 145; Strydom v Ohlsen 1913 TPD
288; Meyers v Abramson 1951 (3) SA 438(C).




[57]
City of Cape Town v National Meat Supplies Ltd 1938 CPD 59;
Pennefather v Gokul 1960 (4) SA 42 (N) at 51A-C; Solomon v Spur Cool
Corpn [2003] All 359 (C) at 369.




[58]
Clayton v Feitelberg 1903 TH 99; Whittaker v Roos; Morant v Roos
1911 TPD 1092.




[59]
Shahmahomed v Hendriks 1920 AD 151 at 159-60; SAR & H v National
Bank of SA Ltd 1925 AD 704 at 716; Van der Spuy v Malpage [2005] 2
ALL SA 635 (N) at 640 and British Diesel s Ltd v Jeram & Sons
1958 (3) SA 605 (N).