H MINNIE versus WJ HATTINGH
CASE NO. CC
146/98 Silungwe, J. 2000.05.08
OF CLAIM --
Application to amend particulars in terms of Rule
28(4) of the
Rules of Court - Application to make substantial amendments to
pleadings not for the asking - such application must be supported by
affidavit showing reasonable cause.
NO. I 146/98
THE HIGH COURT OF NAMIBIA
H. MINNIE PLAINTIFF
J HATTINGH DEFENDANT
The plaintiff brings this motion in terms of Rule 28(4) of the Rules
of Court for leave to amend his Particulars of Claim as set out in
the Notice (pursuant to the said Rule) dated April 6, 1999. The
Notice is, however, resisted by the defendant as per his Notice of
Objection dated April 13, 1999.
Particulars of Claim sought to be amended are these:
Plaintiff is RIAAN H. MINNIE, an adult agent conducting business
at No. 7 Kunene Court, Erospark,' Windhoek.
is WESSEL JOHANNES HATTINGH, an adult businessman care of W H
Agencies CC, Michelsons Building, corner of Iscor and Solingen
Street, Northern Industria, Windhoek.
29 June 1995 and at Windhoek the parties concluded a written
agreement in terms whereof Defendant sold to Plaintiff a 40% members
interest in W H Agencies Close Corporation at a price of NS40 000,00
which Plaintiff duly paid to Defendant on 29 June 1995. A copy of
the said agreement is annexed hereto marked "A".
was an express term of the aforesaid agreement that the members
interest sold would be transferred by Defendant to Plaintiff within
30 days from 29 June 1995. Alternatively
it was an implied term of the aforesaid agreement that the members
interest sold would be transferred by Defendant to Plaintiff within
a reasonable time.
despite demand failed to transfer the members interest sold to
Plaintiff within 30 days from 29 June 1995, alternatively within a
a consequence of Defendant's aforesaid material breach of contract
Plaintiff during May 1997 cancelled the agreement referred to in
paragraph 3 supra and demanded return of the amount of NS40 000,00
demand Defendant refused to comply with.
In the premises the amount of NS40 000,00 is due and payable
by Defendant to Plaintiff.
in the amount of NS40 000,00.
of interest on the amount of NS40 000,00 at the rate of 20% per
annum a tempore
'"A" referred to under paragraph 3 of the Particulars of
WHOM IT CONCERNS.
WESSEL JOHANNES HATTINGH ID No. 550112 00 0120 6 hereby confirm that
MR RIAAN HENRY MINNIE ID 70082700193 as from 29/6/95 has got a 40%
(fourty percent) share holding in my company W H Agencies cc.
Registered Offices at Michelsons Building, c/o Yskor + Soligen Str.
Northern Industrial Area.
has put into the company a R40,000-00 (fourty thousand) Rand
contribution today 29 June 95.
is a temporary document and a final contract between us will be
drawn within the next thirty days.
is followed by the defendant's Exception as reflected below:
EXCEPTS TO THE PLAINTIFF'S PARTICULARS OF CLAIM AS AMPLIFIED BY ITS
FURTHER PARTICULARS BECAUSE IT DOES NOT DISCLOSE A CAUSE OF ACTION
ON THE GROUNDS THAT:
relies on an alleged written agreement of sale in terms whereof
defendant allegedly sold a membership interest in W H Close
Corporation, to the Plaintiff.
written agreement on which Plaintiff relies is annexed to the
Particulars of Claim as Annexure 'A' but:
the alleged written agreement does not contain a purchase price
(but refers to a contribution); and
the parties to the alleged contract have (sic) not been identified
in annexure 'A' as the seller and the purchaser (instead Annexure
'A' seems to be a confirmation of a certain state of affairs).
a fixed price and/or identities of a parties to a contract being
known, the written contract 'A' to the Particulars of Claim, is null
and void in law.
in the event of this Honourable Court finding that Annexure 'A' is
not null and void, then Defendant excepts to the Particulars of
Claim in that it lacks averments to disclose a cause of action, and
on the grounds that:
'A' provides that:
is a temporary document and a final contract between us will be
drawn up within the next 30 days.'
is no allegation contained in the Particulars of Claim as
expired after the lapsing of the 30 days referred to in
excepts on the basis jthat it is at least necessary for Plaintiff to
state that the temporary document became final by virtue of certain
facts and/or the temporary document was replaced by a final document
(which allegations are lacking)."
development is the Notice of Motion as set out hereunder:
PLEASED TO TAKE NOTICE THAT Plaintiff
intends to amend its Particulars of Claim by:
paragraph 3 thereof with the following:
On or about 29 June 1995 and at Windhoek the parties concluded an
oral agreement which was partly confirmed in writing as set out in
annexure 'A' annexed hereto.
In terms of the oral agreement, the parties agreed as follows:
Plaintiff would buy a 40% membership interest in WH Agencies CC
(hereinafter 'close corporation') for an amount of NS40 000.00 and
by bringing in all Plaintiffs agency contracts which he had with
Holtz & Neumann (Pty) Ltd into the close corporation;
Defendant would see to it that the aforesaid 40% membership
interest in the close corporation be
to the Plaintiff within 30 days reckoned as from 29 June 1995,
alternatively within a reasonable time.
would draw up a final agreement for signature by both parties within
30 days from 29 June 1995'.
with the following:
Plaintiff has complied with all its obligations in terms of the
aforesaid oral agreement.'
paragraph 5 with the following:
Defendant has despite demand:
failed to transfer the 40% membership in the close corporation to
the Plaintiff within 30 days, alternatively within a reasonable
period which period has already expired;
failed to draw up a final agreement as is envisaged in the last
paragraph of annexure 'A' annexed hereto within 30 days or at all'.
Substituting paragraph 6 with the following:
As a consequence of Defendant's material breaches as aforesaid,
Plaintiff cancelled the agreement between the parties during May
1997 and demanded return of the amount of NS40 000.00 which demand
Defendant refuses to comply with.'
then comes the Notice of objection in these terms:
TAKE NOTICE that
the abovenamed Defendant objects to the Plaintiffs notice of
intention to amend its particulars of claim.
TAKE FURTHER NOTICE that
the grounds upon which the amendment will be opposed are the
Plaintiff does not tender the Defendant's wasted costs occasioned
as a result of the amendment, and more particularly the wasted
costs incurred by the Defendant as a result of the filing of the
if the Plaintiff amends its particulars of claim as set out in its
notice in terms of Rule 28, the particulars of claim will be
excipiable in that it will not disclose a cause of action
alternatively will be vague and embarrassing, and more particularly
for the following reasons:
Plaintiffs cause of action is based on 'an oral agreement which was
partly confirmed in writing as set out in annexure 'A' hereto' (See
paragraph 1 of the notice in terms of Rule 28);
oral alternatively partly written and partly oral agreement which
will be relied upon by the Plaintiff in the amended particulars of
claim is a contract
between the parties in respect of a membership interest;
'purchase price' of the membership interest (for which 'Plaintiff
would buy a 40% membership interest') was for an amount of NS40
000.00 and 'by bringing in all Plaintiffs agency contracts which he
had with Holtz and Neumann (Pty) Ltd into the close corporation';
'purchase price' of the membership and/or Defendant's obligations in
terms of the agreement is therefore not fixed and/or determinable
and/or certain and/or ascertainable as 'all the agency contracts'
referred to are not identified and/or identifiable. The contract is
therefore null and void;
addition the parties agreed that 'Defendant would draw up a final
agreement for signature by both parties within 30 days from 29 June
an undertaking and/or term merely constitutes an
agree', which is a nullity in law and cannot be
can it be used to allege that a party is in
material breach of an
if the agreement to agree is enforceable, then the terms
the purchase price, as no allegation is made as to what
of the final agreement were to be) of the 'final
be determined by one of the parties, (being the
would also render the agreement 'a nullity in
payment of the NS40 000.00 claimed by Plaintiff, is based on
Plaintiffs right to cancel the agreement (as alleged by
during May 1997;
Plaintiffs alleged cancellation during May 1997, is of
consequence, force or effect, as it is an impossibility in law
cancel a nullity;
cause of action (the cancellation of an agreement
certain amount could be demanded) is therefore
impossibility in law.
Swanepoel appears for the Plaintiff and Mr Heathcote represents the
is much argument as to the merits and counter merits of the proposed
amendments, buttressed by certain authorities. A few of the issues
raised are fit to be canvassed at a subsequent stage (i.e. at the
trial). But, to put it mildly, those particulars of claim leave much
to be desired, hence the plaintiffs step to amend them.
Swanepoel contends that the proposed amendments are not mala
do they cause injustice and that, as such, they should be permitted.
He goes on to say that if the proposed amendments are allowed, there
will be a proper cause of action. He maintains that the proposed
amendments are neither vague nor embarrassing and that an affidavit
in support thereof is not necessary. He thus urges the Court to
exercise its discretion in favour of his client by granting him the
for Mr Heathcote, he makes the point, inter
the proposed amendments are not clerical or trivial but substantial
and, as such, they should be explained by way of an affidavit. He
submits that the onus to show that the proposed amendments are bona
given, rests on the applicant and that this can be achieved by means
of an affidavit.
issue before me is whether the plaintiff has made out his case to
warrant the grant of the relief sought.
is trite law that the decision whether to grant or refuse an
application to amend pleadings rests in the Court's discretion which
must be exercised judicially.
feel it is important to stress that leave to effect substantial
amendments to pleadings is not there for the asking. To seek an
amendment of pleadings is in fact to crave an indulgence and the
applicant must, therefore, furnish a reasonable explanation to show
why such amendment is sought. As De Villiers, JP, aptly observed in
v van Rccmen 1926
OPD 191 at 194-5:
if the party applying for an amendment tenders to pay wasted costs
and to consent to a postponement and to other conditions and terms
which will avoid all direct prejudice to the other party as regards
his prospects of succeeding in the action, that will not entitle him
to claim an amendment as of right, but he will still have to show
reasonable grounds; he must show, for instance, that the matter
involved is the amendment is of sufficient importance to justify him
in putting the Court and the other party to the manifold
inconveniences of a postponement, and that the necessity for an
amendment has [arisen] through some reasonable cause, even if it be
which would, I take it, be the minimum reasonable cause admissible
in this connection."
these observations, I am in full in agreement.
explanation referred to in the preceding paragraph envisages an
affidavit. That this is so is evident from Rule 6(1) of the Rules
which provides as follows:
Every application shall be brought on notice of motion supported by
an affidavit as to the facts upon which the applicant relies for
matter before us has been instituted via the Notice of Motion and
the plaintiff is, therefore, obliged to support his notice of motion
by an affidavit showing the facts upon which he relies for relief.
This he has failed to do.
any event, it is not disputed that the amendments sought to be made
are of a substantial nature. In the circumstances, they need to be
supported by affidavit evidence. In the words of Claasen, J., which
he expressed in Swart:
vl'an der Walt t/a Sentraten 199S
(1) SA 53(W) at 57A-C:
to pleadings can be of a wide variety. Some are simple and purely
formal in nature, i.e. to amend arithmetical and clerical errors in
pleadings. Other amendments may be more substantial, for example,
amendments seeking to withdraw an admission made on pleadings. It is
trite law that amendments constituting the withdrawal of an
admission have to be done on affidavit. However, it would, in my
view, be absurd to interpret the new Rule 28(4) as prescribing the
use of Rule 6 procedure in all cases of applications for leave to
amend pleadings. In cases where a mere word or figure requires
amendment, it will be totally absurd to file a notice of motion
supported by an affidavit to secure such amendments.
would only be necessary in more substantial amendments ..."
proposed amendments are irrefutably substantial with the result that
they must be supported by an affidavit. As previously shown, this
has not been done. On this ground alone, the matter cannot advance
forward unless and until the proposed amendments are supported by
arrived at this conclusion, it is unnecessary to consider other
aspects of the motion.
outcome of this motion is, of course, that it fails. The following
order is made:
motion is dismissed with costs;
plaintiff is put on terms to file an affidavit within 14 days of
the order in support of his proposed amendments with liberty to
refine, amplify or curtail them;
affidavit and the grounds (but only if these will have been amended
in any form or shape) shall at once be served on the defendant who
shall thereafter file an answering affidavit within 14 days;
plaintiff shall file a replying affidavit (if any) within 10 days of
of the answering affidavit.
BEHALF OF THE PLAINTIFF MR
Kruger & Hartmann
BEHALF OF THE DEFENDANT ADV
der Merwe & Greeft'