DB Thermal and Another v Council, City of Windhoek (SA 33/2010) [2013] NASC 11 (19 August 2013);

Group

Full judgment

REPORTABLE

CASE NO.: SA 33/2010

IN THE SUPREME COURT OF NAMIBIA

In the matter between

DB THERMAL (PTY) LTD .......................First Appellant

SPX TECHNOLOGIES (PTY) LTD............. Second Appellant

and

COUNCIL OF THE MUNICIPALITY OF THE CITY OF WINDHOEK.............. Respondent

 

CORAM: MARITZ JA, STRYDOM AJA and O’REGAN AJA

Heard: 07 November 2012

Delivered: 19 August 2013


APPEAL JUDGMENT


O’REGAN AJA (MARITZ JA and STRYDOM AJA concurring):

[1] This is an appeal against an order of the High Court in which that Court struck out affidavits objecting to the amendment of the plaintiff’s particulars of claim and ordered that the applications for amendment of the particulars of claim be dealt with on an unopposed basis.

[2] The appellants, DB Thermal (Pty) Ltd and SPX Technologies (Pty) Ltd, are defendants in a claim for contractual damages brought by the respondent, Windhoek Municipality. The claim arises out of a construction agreement entered into between the Municipality and DB Thermal (Pty) Ltd for the construction of a water purification plant at Goreangab in Windhoek. The Municipality alleges that DB Thermal (Pty) Ltd materially malperformed on the project, which resulted in the Municipality suffering damages in an amount of approximately N$50 million. Since the project was completed, the business of DB Thermal has been bought out by the second appellant, SPX Technologies (Pty) Ltd.

[3] At about the time that SPX Technologies (Pty) Ltd bought the business of DB Thermal (Pty) Ltd, DB Thermal wrote to the Municipality and offered it the opportunity to agree to SPX Technologies (Pty) Ltd becoming the ‘successor-in-title’ to DB Thermal’s rights and obligations under the construction contract. The Municipality did not respond to this letter, which was dated 6 August 2002. Just over two years later, on 25 August 2004, the Municipality issued summons against DB Thermal (Pty) Ltd and SPX Technologies (Pty) Ltd. Apparently coincidentally, on the same day, DB Thermal wrote to the Municipality and said that as its offer that the City accept SPX Technologies to have taken over its rights and obligations arising from the construction agreement had not been accepted by the Municipality, the offer was being withdrawn. In its summons, the Municipality cited SPX Technologies (Pty) Ltd under its former name, Ziton (Pty) Ltd, seeking a declaratory order that it had no contractual relationship with Ziton, and, only in the alternative, damages against Ziton. The Municipality sought damages for the contractual breach from DB Thermal.

[4] DB Thermal and SPX Technologies pleaded to the claim. Their plea included two special pleas, one that the matter should be referred to arbitration as stipulated in the contract, and the other relating to the Municipality’s failure to attach any assets to found or confirm jurisdiction against the respondents. Neither of these special pleas is under consideration in these appeal proceedings.

[5] On 8 November 2007, the Municipality delivered a notice of intention to amend its particulars of claim in terms of which amendment it sought to proceed against SPX Technologies for damages. Both DB Thermal and SPX Technologies opposed the amendment and on 13 August 2008, the Municipality lodged a second notice to amend its particulars of claim, which was again objected to by both DB Thermal and SPX Technologies.

[6] When the two applications to amend the particulars of claim were enrolled for hearing in October 2009, the Municipality took two technical objections in limine to the opposition to the applications lodged by the defendants. The first preliminary point was that the deponent to the first notice of objection was not duly authorised; and the second preliminary point was that the notice of objection had been irregularly lodged by a South African firm of attorneys, Lindsay Keller, and not by a firm of Namibian legal representatives. [7] The High Court upheld the first of the technical preliminary points (that the deponent to the affidavit annexed to the notice of objection had not been duly authorised to make the affidavit) and struck out the affidavits opposing the amendments. The High Court then also ordered that the applications to amend the particulars of claim should proceed on an unopposed basis. The High Court did not deal with the second preliminary point raised by the Municipality. Nor did the High Court deal with the merits of the opposed amendment applications. Indeed, the merits were not argued before it. The appellants sought leave to appeal against the orders of the High Court but leave was refused by the High Court and and the appellants then lodged a petition with this Court seeking leave to appeal, which was granted. Issues for decision

[8] The following issues arise for decision: (a) Was the objection to the authority of the deponent to the first objection well founded? If not, (b) did the objections to the applications to amend comply with section 21 of the Legal Practitioners Act, 15 of 1995? If they did, (c) should the merits of the application to amend the particulars of claim be determined by this Court or should the issue be referred back to the High Court? If this Court decides it is appropriate to deal with the merits of the applications to amend the particulars of claim, then (d) should the applications be granted. The authority of the deponent to the affidavit objecting to the amendment of the particulars of claim

[9] The appellants opposed the first application for amendment of the particulars of claim. In doing so, they lodged an affidavit deposed by Mr Uli Weiler, formerly the Financial Director of DB Thermal and then, at the time the affidavit was sworn, Chief Financial Officer of SBX Technologies. The Respondent argued in the High Court and in this Court that there was no evidence on the record that Mr Weiler had been duly authorised to oppose the application to amend the particulars of claim.

[10] In his affidavit, Mr Weiler asserts the following: ‘I am duly authorised by both the first and second defendants to depose to this affidavit for the purpose of opposing the plaintiff’s application for an amendment’. In the replying affidavit lodged on behalf of the Municipality, Mr Weiler’s authority was denied and it was noted that he had not attached a resolution of either of the appellants to establish his authority to depose to the affidavit.

[11] In argument before this Court, Mr Kemack, on behalf of the appellants, argued that it was not necessary for Mr Weiler to lodge a separate power of attorney and resolution to establish his authority to oppose the interlocutory application. Mr Tötemeyer, on behalf of the Municipality, argued that it was necessary to do so once the Municipality had challenged his authority.

[12] It is common cause that when the appellants lodged their notices of intention to defend the action, they lodged powers of attorney which authorised their Namibian firm of attorneys, Engling Stritter and Partners, to act on behalf of each of them to defend the action and ‘to proceed to the final end and determination thereof, and generally for effecting the purposes aforesaid, to do or cause to be done whatever shall be requisite’. The appellants also lodged resolutions which instructed Lindsay Keller and Partners, Attorneys of Johannesburg, South Africa to act on behalf of each defendant, and to instruct English, Stritter and Partners of Windhoek to ‘act as local correspondent attorneys in Windhoek’ and ‘to do whatever necessary to pursue the defence of the action’.

[13] It is trite that the institution and prosecution of proceedings by legal persons must be authorised, as well as the defence of proceedings. Both the first and second appellant have passed resolutions authorising the prosecution of their defence to the damages claim instituted by the respondent. In addition, the appellants’ legal representatives have been authorised by way of power of attorney to act on appellants’ behalf in the defence of the action. The decision to oppose the applications to amend the particulars of claim is just one of the steps that has been taken in pursuance of that defence. There can be no doubt, therefore, that the appellants’ legal representatives are duly authorised to prosecute the defence of the action.

[14] On the other hand, it is not ordinarily necessary for a deponent to an affidavit in motion proceedings to be authorised by the relevant party to make the affidavit. On this principle, with a resolution and power of attorney in place to defend the action, it was not necessary for Mr Weiler to be specifically authorised to act on behalf of the appellants to make an affidavit opposing the application to amend the particulars of claim. Counsel for the respondent accepted in oral argument that this was the ordinary principle but argued that it was not applicable in this case. He suggested that because DB Thermal had ceased to function some years previously and because the second appellant had changed its name, it was necessary for Mr Weiler to establish his authority to depose to the affidavit. This argument loses sight of the principle that it is not necessary for those making affidavits in interlocutory proceedings to produce their authority to act. Authority is required for the prosecution of litigation, not for the deposition to affidavits lodged in interlocutory proceedings brought in the course of that litigation.

[15] Accordingly, given that there is a valid resolution and power of attorney authorising the appellants’ defence to the respondent’s claim, no further authorisation was needed when Mr Weiler lodged an affidavit opposing the application to amend the particulars of claim and it is irrelevant whether he claimed to be authorised to make the affidavit or not. In reaching a different conclusion, the High Court relied on the decision of Wlotzkasbaken Home Owners Association and Another v Erongo Regional Council and Others in which the High Court had concluded that where proceedings have been instituted by an artificial person, it is permissible, where the question of whether a resolution to litigate has been duly adopted, to attach the resolution to a replying affidavit.

[16] The question addressed in Wlotzkasbaken is a different question to that which arises in this appeal. That case was concerned with the question whether there was authority to institute proceedings, a question that does not arise in this case. In Wlotzkasbaken, the High Court cited with approval the following sentences from the South African case of Ganes and Another v Telecom Namibia Ltd: ‘The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of proceedings and the prosecution therefore which must be authorised.’

[17] These two sentences address the issue that does arise in this case: whether Mr Weiler had to be authorised to depose to the affidavit opposing the applications to amend the particulars of claim. He did not. The High Court erred in concluding that he did, and the judgment of the High Court cannot therefore be sustained on that basis. Given this conclusion, it is not necessary to decide whether the later affidavits and resolutions tendered by the appellant were properly before the High Court. Did the objections to the applications to amend comply with section 21 of the Legal Practitioners Act, 15 of 1995?

[18] As set out above, the respondent raised a separate objection to the appellants’ opposition to the applications to amend based on section 21 of the Legal Practitioners Act, 15 of 1995. That section provides as follows:

‘(1) A person who is not enrolled as a legal practitioner shall not – (a) … (b) … (c) issue out any summons or process or commence, carry on or defend any action, suit or other proceeding in any court of law in the name or on behalf of any other person, except in so far as it is authorised by any other law; or (d) perform any act which in terms of this Act or any regulation made under section 81 (2)(d), he or she is prohibited from performing.’

[19] This provision must be read in conjunction with the rules of Court which contemplate that process of Court must be personally signed by a litigant or signed by a legal practitioner duly admitted to practice. The respondent argued that the appellants’ objection to the first application to amend did not comply with this provision in that the objection, it was argued, was lodged by or on behalf of Lindsay Keller Attorneys who are not Namibian legal practitioners. This point was argued before the Court below but not decided once the first point in limine was decided in favour of the respondent. Given that this Court has overruled the decision of the High Court in relation to the first point in limine, this issue now arises for consideration. In order to consider it, it is necessary to describe briefly the relevant notice of objection.

[20] The notice of objection stated that it was signed at Windhoek on an unnamed day in November 2007. The name of the legal practitioner who signed the document, Y. Dausab, was printed on the notice. Below the signature, the following appears ‘Lindsay Keller Attorneys, Legal Practitioners for the Defendant, c/o Engling, Stritter and Partners, 12 Love Street, PO Box 43, WINDHOEK’ as well as several telephone numbers and as a reference, the name ‘Mr C Bezuidenhout’.

[21] It is common cause that Ms Y Dausab is a legal practitioner employed by Engling, Stritter and Partners and enrolled as a legal practitioner in Namibia for the purposes of section 21 of the Legal Practitioners Act. It is also common cause that Lindsay Keller Attorneys are South African attorneys who are not legal practitioners within the meaning of section 21 of the Legal Practitioners Act. The question to be decided is whether the signature by Ms Dausab above the name Lindsay Keller Attorneys constituted compliance with the terms of the rules, read in the light of section 21.

[22] Ms Dausab is a Namibian legal practitioner and so the notice was signed by a Namibian legal practitioner in accordance with the rules and section 21. However, the respondent argued that because the name ‘Lindsay Keller Attorneys, Legal Practitioners for the Defendants appeared below the Namibian legal practitioner’s name, it meant that the legal practitioner was acting as an agent for South African attorneys who are not eligible to sign or issue process in Namibian courts. This reading of the notice fails to take into account the fact that immediately below the reference to Lindsay Keller Attorneys, is the name ‘Engling, Stritter and Partners’, a Namibian firm of legal representatives. The juxtaposition of the names of the two firms suggests that the Namibian firm is acting as correspondents for the South African firm, something that is consistent with the requirements of section 21.

[23] In arguing that the notice should be set aside, respondent relied on the case of Campania Romana de Pescuit. In that case, an application had been signed by a person who was not a legal practitioner within the contemplation of section 21. The Court held that the legislative purpose underlying section 21 is: ‘. . . to protect the public against charlatans masquerading as legal practitioners … [and] serves the public interest by creating an identifiable and regulated pool of fit, proper and qualified professionals to render services of a legal nature and it is aimed at protecting maintaining and enhancing the integrity and effectiveness of the legal profession, the judicial process and the administration of justice in general.’

[24] Accordingly, the Court held that if a person other than a litigant or a legal practitioner contemplated in section 21 issues out any process in a court of law, or institutes proceedings in a court of law, that process or proceeding will be void ab initio.

[25] There is nothing in the Compania Romana case that suggests that the procedure adopted in this case was inconsistent with section 21 or the rules of Court. Here, unlike in Compania Romana, a duly admitted Namibian practitioner signed the disputed notice. The public interest concerns that inform section 21 as identified in Compania Romana therefore do not arise as an admitted Namibian practitioner signed the relevant notice, and, in addition, the details of her firm were disclosed in the notice. As long as it is clear that the notice was signed by a qualified Namibian practitioner, and the name of that practitioner and the contact details of the firm where that practitioner practices are disclosed in the Notice, as happened here, that will constitute adequate compliance with section 21 and the rules. No harm is caused if additional information is provided, again as happened here, where the notice also contained the names of the instructing lawyers, who are not Namibian legal practitioners.

[26] The respondent’s argument on this basis must therefore fail. Should this Court consider the merits of the applications to amend?

[27] Given that the respondent’s two in limine points have been dismissed, the next question that arises is whether this Court should consider the merits of the applications to amend. During oral argument, both parties submitted that this Court should determine whether the amendments should be granted. The main concern of both was the need for finality on the issue.

[28] In considering whether it is appropriate to determine the merits of the appeal, a range of considerations should be borne in mind: whether the issues have been argued before the High Court and/or this Court, the nature and complexity of the issues, and whether they are issues of law or fact as well as the need to ensure the prudent employment of scarce judicial resources as well as fairness to all parties. The merits were fully traversed in the hearing before this Court, they relate to relatively narrow issues that can be determined on the record before us, and both parties have agreed that this Court should decide the merits. In the circumstances, it is appropriate for this Court to determine whether the amendments to its particulars of claim sought by the respondent should be granted. Should the amendments to the particulars of claim sought by the respondent be granted?

[29] In order to address this issue, it is necessary to set out briefly the nature respondent’s claim against appellants. As mentioned above, the claim arises out of a contract entered into in May 1999 between the first appellant and the respondent for the construction of a water purification plant at Goreangab in Windhoek. In July 2002, when work on the purification plant had apparently been completed, the second appellant acquired 100% of the share capital of the first appellant and acquired the business of the first appellant as a going concern. On 6 August 2002, the first appellant wrote to the respondent in a letter that was annexed to the particulars of claim notifying the respondent of the second appellant’s acquisition of the business of DB Thermal and inviting the respondent to approve the transfer of all the first appellant’s assets and liabilities arising from the Goreangab contract to the second appellant. The respondent did not reply to this letter.

[30] Instead in August 2004, the respondent issued summons against the first appellant. The second appellant was cited, but paragraph 18 of the particulars of claim asserted that the respondent had not acceded to the first appellant’s request in its letter of 6 August 2002 to accede to the cession of the first appellant’s rights and liabilities in terms of the Goreangab contract, and asserted that it sought an order declaring that no contractual relationship existed between it and the second appellant.

[31] On the same day that summons was issued, as mentioned above, the appellants’ attorneys wrote to the respondent stating that the first appellant’s offer to the respondent seeking approval of the substitution of second appellant as a contracting party in place of first appellant was being withdrawn and that both appellants accepted that the respondent had never consented to the second appellant as a party under the Goreangab contract, and that therefore the second appellant had never become a party to that contract.

[32] From the aforegoing, it is clear that at the time summons was issued, respondent had not acceded to first appellant’s request that its rights and liabilities under the Goreangab contract be transferred to the second appellant. There was accordingly no contractual relationship between the respondent and the second appellant at that time.

[33] Over a year later, in November 2007, the respondent served its first notice of intention to amend. The notice of amendment has three main aspects. The first two are not opposed by the appellants. These concern the substitution of the name of second appellant, and the deletion of the third to fifth defendants. There is no reason why these aspects of the notice of amendment should not be permitted, and the order at the end of this judgment will reflect that conclusion. [34] Thirdly, the notice of amendment seeks to assert that the respondent has a contractual claim against the second appellant on the basis that the first appellant had transferred its rights and obligations under the Goreangab contract to the second appellant. The appellants objected to the amendment of this claim on two bases, first, that the respondent failed to plead that a contract existed between it and the second appellant; and secondly, that it was clear from the existing pleadings that no such contract existed because the respondent had never acceded to first appellant’s request that respondent accept that second appellant take over first appellant’s rights and obligations under the Goreangab contract.

[35] In August 2008, the respondent then served a further notice of application to amend. In it, the respondent sought to introduce an averment that it now consented to the assignment of the rights and obligations of the first appellant to the second appellant. The appellants objected to the second notice to amend on the basis that the respondent was seeking by this notice to amend to effect a consent to a transfer of the first appellant’s right and obligations under the Goreangab contract to the second appellant, at a time when the offer had been withdrawn, and in order to create a cause of action against the second appellant that had not previously existed.

[36] The appellants argue that the amendments, in so far as they purport to amend the particulars of claim, to bring into effect a contractual relationship between the respondent and the second appellant is not permissible, as it is not permissible to amend a pleading to include, or indeed to attempt to establish, a cause of action that did not exist at the time that summons was issued.

[37] The respondent asserts that it should now be permitted to consent to the offer of 6 August 2002 and asserts that it was misled by the appellants in relation to the offer made to it. It is not possible on the record before us to determine the allegations of misconduct made by the respondent against the appellants, which are vigorously denied by the appellants. The simple question that arises is whether the proposed amendments should be granted in the light of the applicable principles of law.

[38] For many years, the ordinary principle has been that a pleading may not be amended to disclose a cause of action that did not exist when the proceedings were initiated, although in exceptional circumstances courts may permit such an amendment. The basis of the rule is that litigants should be discouraged from instituting action when they have no cause of action. 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. At times, this principle may be in conflict with the rule that an amendment may not be used to plead a cause of action that did not exist when summons was issued. Arguably as a result, courts in South Africa appear to be becoming more accommodating of amendments where the amendment introduces a cause of action that did not exist at the time that the summons was issued. As will appear from what follows, it is not necessary in this case to decide whether this trend should be followed in Namibia.

[39] A further principle governing amendments is that a pleading may not be amended if the result would be excipiable on the basis, for example, that the amended pleading would not disclose a cause of action. Again a court may permit an amendment, even if it would render the pleading excipiable, if exceptional circumstances exist. In order for a pleading to disclose a cause of action, it must set out every material fact, which it would be necessary for the plaintiff to provide to support his or her right to the order sought.

[40] I turn now to apply these principles to the facts of this case. The respondent is seeking to amend its particulars of claim by purporting to accept an offer made by first appellant to respondent to transfer first appellant’s rights and obligations under the Goreangab contract to the second appellant. There is an insuperable difficulty with the respondent’s purported amendment. On the record before us, that offer was never accepted by the respondent and was withdrawn by the first appellant in August 2004. In order for the amendment to be permissible, the respondent would need to plead the factual basis on which it asserts that a contractual relationship came into existence between it and the second appellant, given that it is common cause that the respondent did not accept the offer of delegation before it was withdrawn. This, the respondent fails to do. The absence, in the amended particulars, of any averment providing a factual basis upon which the respondent could establish the existence of a contract between it and the second appellant renders the proposed amendments to the pleadings fatally defective.

[41] Instead, the respondent asserts that it did not accept the offer made by the first appellant because it was misled as to the circumstances of the transfer of the business and the implications of the offer. The respondent asserts that the appellants acted fraudulently in misleading it in this way. Even if the respondent were to establish these allegations in a trial, it would not establish that a contractual relationship has arisen between the second appellant and the respondent. If it could establish these allegations in evidence, it may be that the respondent might have a claim in delict against the first, and possibly the second appellant, but that is not the cause of action it seeks to plead in these proceedings. Here the question is whether the proposed amendment of its particulars of claim discloses a contractual cause of action between the respondent and the second appellant. On the facts that are before the Court at this stage, the proposed amendment does not disclose a cause of action based on contract.

[42] In oral argument, counsel for respondent raised several arguments to assert that the proposed amendments should be granted. First, he sought to rely on the decision in Estate Breet v Peri-Urban Areas Health Board to assert that a contract can come into existence without consensus between the parties. That case, however, is concerned with the question of prescription and does not assist the respondent. The facts were the following: the appellant was the estate of a man who had developed a township in Johannesburg. The terms of the township establishment required the township developer to provide quarterly audited statements to the Peri-Urban Areas Board indicating what stands had been sold in the township and to pay to the Board a percentage of the purchase price received in respect of those stands. The township developer had failed to account to the Board and the Board had applied to Court for an order compelling the Estate to provide the audited statements. The Estate opposed the application on the basis that the obligation to furnish audited statements arose from a contract, and given the elapse of time since the establishment of the township, the claim had prescribed. The court of first instance held that a contract had not existed between the township developer and the Board and dismissed the Estate’s defence. The appeal was also dismissed, the court holding unanimously that the claim had not prescribed, although some of the judges took the view that a quasi-contractual relationship had existed between the developer and the board.

[43] Secondly, counsel for respondent sought to argue that the transfer of rights and obligations under the building agreement could have taken place without an offer being made by the appellants, merely with the consent of the Municipality. This argument cannot be accepted. It is clear from the letter of 6 August that the first and second appellants are offering an assignment of the first appellant’s rights and obligations under the building contract to the respondent, which if accepted would have resulted in a novation of the contract, a new contract in which the respondent and second appellant would be parties. This is clear from the fact that appellants propose that both the rights and obligations flowing from the contract will be transferred to the second appellant. Such an agreement requires consent of all parties. Once the offer was withdrawn, there was no basis upon which the mere consent of the respondent could result in a novation.

[44] Thirdly, counsel for the respondent sought to rely on the decision of the South African Supreme Court of Appeal in Randcoal Services Ltd v Randgold and Exploration Co Ltd, in which that Court noted that where A is a debtor of B, nothing stops A agreeing with C that C will discharge A’s obligation to B. The Court continued by noting that A and C may also agree that B will be entitled to accept the delegation of A’s obligation, but they need not do so. If B does agree, then there will be a ‘true delegation’ of A’s obligation, but if B does not do so, A can still call on C to pay B, simply as a result of the joint agreement between B and A. This reasoning does not assist the respondent either. What happened in this case, is that the appellants (who can be liked to A and C in the preceding example) did call on B to agree to a substitution of C for A. However, B did not agree to that substitution, and eventually A and C withdrew their offer to B.

[45] Finally, counsel for the respondent sought to suggest that the acquisition agreement in terms of which the second appellant acquired the business of the first appellant should be interpreted as a stipulatio alteri, in terms of which confer rights were conferred upon the respondent by agreement between the two appellants. However, the respondent could not point to a provision in the acquisition agreement that expressly or by necessary implication provided for such a stipulatio alteri.

[46] It follows that the respondent has not been able to establish that the proposed amendment to the particulars of claim would disclose a cause of action. Following the ordinary rule, therefore, the amendments should not be granted. The last question that arises is whether this Court should exercise its discretion to permit the amendment, even though the amended particulars would not disclose a cause of action. As mentioned above, the main purpose of amendments is to permit the proper ventilation of the issues between the parties. Where the proposed amendment will not result in the ventilation of such issues because it does not disclose a cause of action, it will be rare for it to be appropriate to grant the amendment. As Selikowitz J stated in Benjamin v Sobac South African Building and Construction (Pty) Ltd, ‘[i]f the claim is, in the circumstances of this case, not in law a viable claim I would be doing not only the respondent but also the applicant an injustice by granting the amendment’.

[47] The only consideration suggested by the respondent as warranting the grant of the applications to amend were the allegations concerning the circumstances in which the offer to novate the building agreement was made by the appellants. As mentioned above, even if these allegations prove to be true, they would not give rise to a finding that a contractual relationship came into existence between the second appellant and the respondent. In the circumstances, they do not establish exceptional circumstances that warrant the grant of the applications to amend.

[48] In the circumstances, the amendments should not be granted, save to the extent set out in para [33] above. The result is that the appeal succeeds, and the order of the High Court must be set aside and replaced with an order refusing the applications to amend the particulars of claim, save in two limited respects.

Costs

[49] The appellants have, in the main, been successful on appeal and it is appropriate that they be awarded costs on the basis of two instructing and two instructed counsel. As to the costs in the High Court, although two aspects of the applications to amend have been successful, the appellants (the defendants in the High Court) did not oppose the two successful amendments. Their opposition was limited to the amendments that have been unsuccessful. It is accordingly appropriate that the appellants should be awarded their costs of opposition in the High Court. Although three instructed counsel were apparently employed in that Court, only two instructed counsel were employed upon appeal, and it is appropriate to limit the award of costs in the High Court to the costs of two instructed and two instructing counsel.

Order

[50] The following order is made:

1. The order made by the High Court is set aside and the following order is substituted for it:

‘(a) The application to substitute paragraph 3 of the particulars of claim with the following paragraph is granted:

“The second defendant is SPX Technologies (Pty) Ltd (“SPX”), a company with limited liability incorporated in terms of the laws of South Africa with its principal place of business at 2 Eglin Rd, Sunninghill, Gauteng.”

(b) The application to delete the existing paragraphs 4, 5 and 6 from the particulars of claim is granted.

(c) Save as set out in paragraphs (a) and (b) above, the plaintiff’s applications to amend its particulars of claim are dismissed.

(d) The plaintiff is ordered to pay the costs incurred by the defendants in opposing the applications to amend the particulars of claim, such costs to include the costs of two instructing and two instructed counsel.’

2. The respondent is ordered to pay the costs of the first and second appellants on appeal, such costs to include the costs of two instructing and two instructed counsel.

_________________________

O’REGAN AJA

_________________________

MARITZ JA

_________________________

STRYDOM AJA

 

APPEARANCES

APPELLANTS: Mr A Kemack SC (with him Mr G Dicks)

Instructed by Engling, Stritter & Partners

RESPONDENT: Mr R Tötemeyer (with him Ms H Schneider)

Instructed by LorentzAngula Inc