Court name
High Court Main Division
Case name
Independent Asphalt Services Namibia CC v Namibia Construction (Pty) Ltd
Media neutral citation
[2014] NAHCMD 329
Judge
Parker AJ










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: I 128/2012





DATE:
06 NOVEMBER 2014





REPORTABLE





In the matter
between:





INDEPENDENT
ASPHALT SERVICES NAMIBIA CC..................PLAINTIFF





And





NAMIBIA
CONSTRUCTION (PTY) LTD...................................DEFENDANT





Neutral citation:
Independent Asphalt Services Namibia CC v Namibia Construction (Pty)
Ltd (I 128/2012) [2014] NAHCMD 329 (6 November 2014)





Coram: PARKER AJ





Heard: 7 October
2014





Delivered: 6
November 2014





Flynote: Practice –
Pleadings – Particulars of claim – Amendment of –
When to be granted – Amendment raising no cause of action and
therefore excipiable – Court held that ‘cause of action’
means the fact or combination of facts which give rise to a right of
action – In instant case court found that the proposed
amendment does not disclose a course of action and is therefore
excipiable and would cause irreparably prejudice to the defendant if
it was allowed – Based on excipiability of the amendment and
attendant irreparable prejudice to the defendant court refused to
allow the amendment.





Summary: Practice –
Pleadings – Particulars of claim – Amendment of –
When to be granted – Amendment raising no cause of action and
therefore excipiable – Plaintiff sought to amend its
particulars of claim whereby it would claim payment by defendant of
an amount for goods plaintiff did not supply in terms of a contract –
On plaintiff’s own version it did not supply the bitumen part
of asphalt required for the road construction project but the
defendant did – Court found therefore that if the plaintiff’s
amendment was allowed its further conditional claim will not disclose
a cause of action, thus rendering the amendment excipiable –
Court found further that for that reason irreparable prejudice would
be occasioned the defendant if the amendment was allowed –
Consequently, court refused to allow the amendment on the basis that
the amendment would be excipiable and there would be irreparable
prejudice to the defendant – Application was accordingly
dismissed with costs.








ORDER





The application is
dismissed with costs; such costs include the costs of one instructing
counsel and two instructed counsel.





JUDGMENT





PARKER AJ:





[1] This is an
application for certain amendments that are sought to be made to the
plaintiff’s particulars of claim. The defendant objected to
some of the amendments and has, accordingly, moved to reject the
application to amend. The matter concerns an agreement entered into
between the parties respecting the supply of mix and paving, asphalt
levelling and wearing courses for the upgrading of Walvis Bay
Airport.





[2] The amendments
which the plaintiff now seeks to make to its pleadings are contained
in the notice of amendment. I use the word ‘now’
advisedly; for, there have been two previous occasions on which the
plaintiff sought to amend its particulars of claim in the summons
that was issued from the registrar’s office on 26 January 2012.
The latest notice to amend, which is the subject matter of the
instant proceeding, was filed on 31 January 2014.





[3] In order to
appreciate fully the extent and impact of the proposed amendment
objected to, it is necessary to set it out. It is contained in para 8
of the notice, and the proposed amendment would be introduced as a
new para 49A in the particulars of claim (‘the amendment’),
and is as follows:





‘ “49A.
PLAINTIFF’S FURTHER CONDITIONAL CLAIM





49A.1 In the event
that this Honourable Court holds that the Sub-Contract Agreement was
not amended as set out in paragraphs 14.2 to 14.14 above, the
Defendant remained liable to pay to the Plaintiff the amount of NAD
431.51 per ton in respect of asphalt.





49A.2 As is apparent
from annexure “POC8”, the amount of asphalt supplied by
the Plaintiff in accordance with the provisions of the contract is
49,112.21 tons.





49A.3 The Defendant
accordingly became liable to pay to the Plaintiff in accordance with
the provisions of the contract the sum of NAD 21,191,918.00.





49A.4 By reason of
its belief that the Sub-Contract Agreement had been amended in
accordance with the facts set out in clause 14 above, the Plaintiff
submitted claims to the Defendant based on the rate of NAD 246.60 per
ton in respect of asphalt in a total amount of NAD 12,111,070.00.





49A.5 The balance,
being an amount of NAD 9,080,848.00, accordingly remains due, owing
and payable by the Defendant to the Plaintiff in accordance with the
provisions of the Sub-Contract Agreement”.’





[4] As the title of
the proposed amendments indicate, the claim is a conditional claim,
and is introduced in the alternative. And the defendant’s
notice of objection shows that the basis of the objection is
predicated primarily on the following as argued by Mr Tötemeyer
SC (with him Mr Dicks), counsel for the defendant. The plaintiff’s
further claim is conditional upon the court holding that the
subcontract agreement was not amended as set out in paras 14.2 to
14.14 of the plaintiff’s notice of amendment. And the basis of
plaintiff’s further conditional claim is contained in annexure
‘POC8’ (annexed to the original particulars of claim).
The plaintiff contends that it is apparent from ‘POC8’
that the amount of asphalt supplied by the plaintiff in accordance
with the provisions of the contract is 49,112.21 ton and that the
defendant is accordingly liable to pay the plaintiff the sum of
N$21,191,918.00 in accordance with the provisions of the contract.
This amount is calculated on the basis of N$431.51 per ton of asphalt
that incudes bitumen. But it is apparent form para 1 of the
plaintiff’s rule 28 (now rule 52) notice, particularly subparas
14.7, 14.8 and 14.9 thereof, read with annexure ‘POC8’,
that on the plaintiff’s own version, it did not supply bitumen
for the project, and that it was the defendant who supplied the
bitumen for the project as from or about April 2008. That being the
case, so Mr Tötemeyer submitted, the intended amendment is
excipiable for the following reasons: The plaintiff’s claim is
based on a price which includes bitumen and is formulated as if the
plaintiff supplied that bitumen. But on the plaintiff’s own
allegations, the plaintiff did not comply with its obligations in
terms of the original (unamended) subcontract agreement to supply
bitumen. The plaintiff cannot, accordingly, so concluded Mr
Tötemeyer, claim payment of an amount which includes a charge
for bitumen. Thus, the bone and marrow of the defendant’s
objection is that if plaintiff’s amendment was allowed, its
further conditional claim will not disclose a cause of action, and, a
priori, the defendant will be prejudiced thereby.





[5] The plaintiff’s
response, as put forth by Mr Ford SC (with him Ms De Jager), counsel
for the plaintiff, in his submission, is primarily this. The
defendant cannot have it both ways: the defendant should either
accept that the subcontract agreement was amended, notwithstanding
the non-variation clause contained in clause 20, read with clause 29,
or it should accept that it is liable to pay to the plaintiff the
amount of N$431.51 per ton in respect of asphalt. However, if the
plaintiff is granted leave to amend its particulars of claim by the
introduction of the conditional claim as set out in the proposed
paragraph 49A, then the plaintiff will be able to rely, either on the
fact that the subcontract agreement was varied, as alleged and
pleaded by the plaintiff, or that the defendant is liable in terms of
the agreement, in its admitted form, to the plaintiff for asphalt at
N$431.51 per ton. And, further, according to Mr Ford, the plaintiff
seeks to introduce a conditional claim if it was found that the
subcontract agreement was not varied to the effect that the defendant
would supply the bitumen for the asphalt and that the price of the
asphalt was accordingly reduced from N$431.51 per ton to N$246.60.
Based on this argument, Mr Ford concluded that the objection of the
defendant is accordingly entirely without merit and is patently an
opportunistic attempt to delay and confuse matters so as to avoid
dealing with the merits of the plaintiff’s claim, and, further,
that there is no prejudice whatsoever to the defendant if the
proposed amendment was allowed, and that, in any case, the defendant
did not, in answer, contend the occasioning of prejudice.





[6] As to the
defendant’s contention that the further conditional claim does
not disclose a cause of action; Mr Ford says it does disclose a cause
of action for the following reasons: According to counsel, the
plaintiff’s ‘conditional claim is based on the contract
as it now stands, the unamended subcontract agreement in terms of
which the plaintiff was to supply asphalt at an agreed price per
ton’. And, further, the specified and agreed price of the
asphalt in the unamended subcontract agreement is N$431.51 per ton of
asphalt supplied. For Mr Ford, the source of the bitumen used is
irrelevant to the defendant’s liability in terms of the
unamended contract for that agreed amount. And so, he submits that
the conditional claim in terms of the unamended subcontract agreement
is accordingly sound and enforceable in law should it be found that
the agreement was not amended as contended in the main claim, and,
therefore, the further conditional claim does disclose a cause of
action in terms of the unamended subcontract agreement and is not
excipiable.





[7] Mr Ford submits
further that the defendant cannot, by precluding the plaintiff from
amending its particulars of claim, rely on the plaintiff’s
non-compliance with its obligations in terms of the subcontract
agreement, and that the defendant can only do so by pleading a breach
on behalf of the plaintiff. Counsel states that a party is obliged to
plead a breach in order to rely on it; and what is more, in the
circumstances of the matter, should the defendant plead a breach on
the plaintiff’s behalf, the plaintiff will be able to raise
estoppel in reply thereto. That may be so; but I do not think the
court should at this time of the day concern itself with what the
defendant may do and what the plaintiff may be able to do. I,
therefore, do not find the passage culled from Dowles Manor
Properties Ltd v Bank of Namibia 2005 NR 59 at 64H-I, referred to me
by Mr Ford, of any assistance on the point under consideration.





[8] It has been said
that the court is generally inclined to allow an amendment intended
to give a proper airing of the disputes between the parties in order
to determine the real issues between them so that justice may be
done. See Dowles Manor Properties Ltd. It has also been held that an
amendment ought not to be allowed where its introduction into the
pleading would render such pleading excipiable on the basis that the
pleading as amended would not disclose a cause of action or a
defence. See Euroshipping Corp of Monrovia v Minister of Agriculture
and Others 1979 (2) SA 1072 (C).





[9] As I see it, the
main source of the present dispute in the instant proceedings centres
around whether the original subcontract agreement was amended despite
the non-variation clause and around asphalt, with or without bitumen,
for the project. The plaintiff contends that ‘the source of the
bitumen used is irrelevant to the defendant’s liability in
terms of the unamended contract for that agreed amount’ of
N$431.51 per ton. That may be so; but the fact remains undisputed
that that amount is for asphalt and bitumen. On the evidence placed
before the court, I find that on the plaintiff’s own version,
the plaintiff did not supply the bitumen; the defendant did supply
the bitumen for the project as from April 2008 or thereabouts. But
the plaintiff’s claim under the amendment is in respect of
asphalt with bitumen, that is, bitumen which the plaintiff admits it
did not supply; bitumen which the plaintiff admits the defendant
supplied. It follows that the plaintiff cannot by any stretch of
legal imagination claim payment for an amount – any amount –
which includes a charge or price for bitumen. With the alternative
claim the plaintiff seeks to claim as if the plaintiff delivered the
bitumen which, as I have said more than once, on its own version, it
never did; but the amount involved is a claim for the bitumen. Mr
Tötemeyer put it sagaciously thus: ‘All that the plaintiff
alleges regarding delivery of bitumen is that it did not deliver
bitumen’. But the claim includes a charge for bitumen, as I
say.





[10] For these
reasons, Mr Tötemeyer argues that if the plaintiff’s
amendment was allowed its further conditional claim will not disclose
a cause of action. In Read v Brown 22 QBD128 at 131, Lord Esher
defined ‘cause of action’ to be ‘every fact which
it would be necessary for the plaintiff to prove if traversed in
order to support his right to the judgment of the court. It does not
comprise every piece of evidence which is necessary to prove each
fact, but each fact which is necessary to be proved. Put simply,
‘cause of action’ is ‘the fact or combination of
facts which give rise to a right of action’. (Roger Bird,
Concise Law Dictionary, 7th ed (1983))





[11] In the instant
case, on the facts which I have found to exist, I conclude that if
the amendment was allowed the further conditional claim contained
therein would not generate a ‘fact or combination of facts
which give rise to a right of action’, that is, the plaintiff’s
right of action. Consequently, I accept Mr Tötemeyer’s
submission that the amendment does not disclose a cause of action. It
is for the reason that the amendment does not disclose a cause of
action that Mr Tötemeyer argues that the amendment is
excipiable. On the authorities, I accept Mr Tötemeyer’s
argument. The amendment is excipiable. But that does not end the
matter. A consideration of whether the amendment, if allowed, would
occasion prejudice to the other side is relevant in determining an
application to amend pleadings. The plaintiff contends that no
prejudice would be occasioned the defendant if the amendment was
allowed. The defendant contends contrariwise. The defendant says that
if the amendment was allowed it would be prejudiced because the
amendment would not disclose a cause of action.





[12] In this regard,
I understand ‘prejudice’ to mean that the amendment would
cause an injustice to the defendant which cannot be compensated by an
order of costs or a postponement. See Euroshipping Corp of Monrovia v
Minister of Agriculture and Others, which approved the approach
enunciated in Moolman v Estate Moolman and Another 1927 CPD 27 at 29.
On the evidence, I find that the defendant would be irreparably
prejudiced by the amendment sought, if granted.





[13] I have
carefully considered the arguments put forth so ably by both counsel
and the evidence placed before me. Having done that I conclude that
the plaintiff has not made out a case for the relief sought in the
notice of motion; whereupon, the application is dismissed with costs;
such costs include the costs of one instructing counsel and two
instructed counsel.





C Parker





Acting Judge






APPEARANCES





PLAINTIFF : E A S
Ford SC (assisted by B de Jager)





Instructed by
Fisher, Quarmby & Pfeifer, Windhoek





DEFENDANT: R
Tötemeyer SC (assisted by G Dicks)





Instructed by
Koep & Partners, Windhoek