Court name
Supreme Court
Case name
Hartzenberg v Standard Bank Namibia Limited
Media neutral citation
[1970] NASC 29
Judge
Damaseb DCJ










REPORTABLE


CASE
NO: SA 57/2014


IN
THE SUPREME COURT OF NAMIBIA


In
the matter between:


 








CHRISTELLE
HARTZENBERG


and


STANDARD
BANK NAMIBIA LIMITED



Appellant


 


Respondent






Coram:
         DAMASEB
DCJ, SMUTS JA and HOFF AJA


Heard:          
26 October 2015


Delivered:    
13 November 2015


APPEAL
JUDGMENT
 


DAMASEB
DCJ (SMUTS JA and HOFF AJA concurring):


Introduction


[1]       
In the court
a
quo
the
appellant (Ms Hartzenberg) was the first defendant and the
respondent, Standard Bank Namibia Limited (SBN) was the plaintiff.
The main issue raised in this appeal is when an additional claim can
be added to an existing one without becoming prescribed under the
Prescription Act[1] (the
Prescription Act) in light of the fact that a proposed amendment to a
conditional counterclaim was objected to on the ground that it sought
to introduce a claim which had become prescribed. It is trite that an
amendment which introduces a new claim will not be allowed if it
would resuscitate a prescribed claim.[2]
SBN’s objection to the proposed amendment is based on the
premise that the claims encompassed in the proposed amendment are new
debts that had prescribed, whereas Ms Hartzenberg maintains that they
are the same debts as the original ones arising from the same or
substantially same facts.


[2]
       There is also disagreement
between the parties on a matter of procedure, namely, how SBN went
about ventilating the objection to the proposed amendment to the
conditional counterclaim. According to Ms Hartzenberg, an issue of
this nature should not be decided as an exception, if evidence can be
led to elucidate, interpret or clarify the issue to which the
exception relates. She claims that if prescription were raised by way
of special plea it would be possible for her to lead evidence, for
example, that an admission of liability on the part of the plaintiff
interrupted the running of prescription. SBN maintains, however, that
it was common cause between the parties
a
quo

that the proposed amendment fell to be decided exclusively on legal
argument without recourse to trial and that it was permissible to
raise prescription in the way it did and not by way of special plea.


The
pleadings


[3]       
In its particulars of claim of May 2012 SBN, claiming to be the owner
of a 2005 BMW 120i (the subject vehicle), sought an order for the
delivery of the subject vehicle from Ms Hartzenberg who is in
possession of it. Ms Hartzenberg delivered a plea to the particulars
of claim in which she denied SBN’s ownership of the subject
vehicle.  She pleaded further that in the event that SBN is
found to be the owner of ‘some parts and/or components of the
vehicle’ same constituted a wreck which came into the
possession of Auto Tech Panel Beaters CC (Auto Tech) which was cited
as second defendant in the combined summons for the interest it had
in the matter. Ms Hartzenberg pleaded in amplification that Auto
Tech, using its own parts and components, transformed the wreck into
a different vehicle and that ‘the repaired vehicle no longer
could be said to be the vehicle previously owned by’ SBN.


[4]       
Ms Hartzenberg also delivered a conditional counterclaim in the event
it is found that the reconstructed vehicle still belonged to SBN. She
alleged in that conditional counterclaim that in 2007 a certain
Namupolo delivered the vehicle to Auto Tech with an approximate value
of about N$30 000, for repairs.  When Namupolo failed to collect
the vehicle, Auto Tech sued Namupolo 'for payment of the amounts' due
to Auto Tech.  Auto Tech obtained judgment against Namupolo and
upon it being sold in execution, Auto Tech purchased it and repaired
it in the amount of N$262 380,96.  Ms Hartzenberg’s
pleaded case in the conditional counterclaim is that the wreck
received from Namupolo had a negligible value when compared to the
product that emerged after Auto Tech reconstructed it. 
According to her, it was the reconstructed vehicle which she ‘during
or about December 2010’ purchased from Auto Tech ‘at a
discounted price of N$140 250’.


[5]       
Ms Hartzenberg further pleaded in the conditional counterclaim that
in order to protect the purchase price paid to Auto Tech, she asked
for and obtained from Auto Tech a security and or an indemnity. 
It was for that reason that Auto Tech ceded to her its rights of
action against the owner of the vehicle. The cession agreement was
concluded on 4 July 2012 and supplemented on 23 August 2012.  It
is these two cessions that Ms Hartzenberg relies on for her claims
against SBN.  She alleges in the conditional counterclaim that
if SBN were found to be the owner of the reconstructed vehicle, it
would be ‘unjustifiably and unjustly enriched’ at the
expense of Auto Tech, who in repairing the subject vehicle, advanced
SBN’s affairs.  Auto Tech therefore, she claims, has an
enrichment action against SBN ‘for the extent of the costs of
the repairs of the vehicle’.


[6]       
As an alternative to the enrichment claim, Ms Hartzenberg relies on
negotiorum
gestio.
That
claims is based on the ground that Auto Tech, recognising the
ownership of the vehicle by SBN but without SBN’s knowledge,
managed SBN’s affairs in relation to the vehicle
animus
negotia gerendi
in
effecting the repairs and that such management of SBN’s affairs
was reasonable. It is alleged that that entitled Auto Tech, as
negotiorum
gestor
,
to reimbursement for ‘the necessary and useful expenses arising
from the repairs to the vehicle’.


[7]       
The third alternative claim raised in the conditional counterclaim is
that of a ‘tacit mandate’ arising from SBN’s
alleged failure in not informing Auto Tech to desist from effecting
repairs to the vehicle, aware that its affairs were being managed by
Auto Tech in relation to the subject vehicle. According to Ms
Hartzenberg, on account of the alleged failure on SBN’s part,
it should be regarded as having tacitly authorised Auto Tech to
repair the subject vehicle and in so doing assuming liability to
reimburse Auto Tech 'for its reasonable expenses' in relation to the
vehicle.


[8]       
On 29 November 2013 SBN delivered a plea to Ms Hartzenberg’s
conditional counterclaim.


[9]       
On 6 November 2013 (some 5 years after the year 2007), Ms Hartzenberg
delivered a notice of intention to amend the original conditional
counterclaim. The timing is relevant because the proposed amendments
relate to facts that allegedly arose in 2007. The proposed amendment
included two additional claims not alleged in the original
conditional counterclaim.  Of the two claims, the first is for
an amount of N$7350, allegedly representing towing costs when the
vehicle was conveyed from Oshakati to Tsumeb.  The second claim
is for an amount of N$156 630 representing storage costs allegedly
incurred in respect of the subject vehicle from 17 January 2007 to 7
October 2010.  It is these two additional claims which SBN
objected to on 15 November 2013 and which are the subject of the
present appeal. 


[10]     
The objection is that the claims for both towing and storage arose
more than three years before the date of delivery of Ms Hartzenberg’s
notice to amend.  According to SBN, by introducing the storage
claim and the towing claim, Ms Hartzenberg is seeking to
‘impermissibly . . . resuscitate’ claims which had become
prescribed in terms of s 11(d) of the Prescription Act.


The
application to amend


[11]     
The notice to amend having become opposed, Ms Hartzenberg filed a
formal application to amend.[3] 
The founding affidavit is deposed to by her legal practitioner of
record, Mr Mueller, who averred that SBN’s objection to the
notice to amend is not predicated upon any prejudice, except the
perceived prejudice arising from having to deal with a prescribed
claim.


[12]     
Mr Mueller contended that it was improper for a plea of prescription
to be determined or adjudicated as if raised as an exception as doing
so precludes the possibility of Ms Hartzenberg leading oral evidence
and cross-examining the witnesses of SBN.  Without as much as
foreshadowing the possibility that Ms Hartzenberg intends to do so or
pointing to facts that would be relied on as operating to interrupt
the running of prescription, Mr Mueller added that ‘in the
event’ prescription is pleaded, ‘oral evidence in
relation to such plea is permitted, cross-examination is permitted
and the ordinary rules relating to trial proceedings apply’. Mr
Mueller also averred that by allowing the objection to be adjudicated
as if it were an exception, Ms Hartzenberg ‘would be deprived
of the opportunity to avail herself of the right to lead oral
evidence and to cross-examine witnesses’.  Mr Mueller most
crucially alleged that:



Since the issues relating to
the question whether the claims of the first defendant objected to by
the plaintiff have become prescribed or not, adjudicated against what
currently appears on record,
would
entail exclusively legal argument
,
it would not be necessary for me to with extensive elaboration and in
detailed particularity set out in this affidavit the legal argument
that the first defendant would rely upon at the hearing of this
matter.’
(My
emphasis.)


[13]     
SBN’s legal practitioner of record, Mr Behrens, in answer to Mr
Mueller, deposed to an opposing affidavit on behalf of SBN.  He
therein denied that in the present case there would arise a
‘deprivation’ of Ms Hartzenberg’s right to call
oral evidence and to cross-examine witnesses. He admitted the
allegation that the matter fell to be determined exclusively by legal
argument.  He also denied that the two additional claims
introduced by the amendment ‘are a mere extension or
supplementation or elaboration’ of the original conditional
counterclaim.


Proceedings
in the High Court


[14]     
After hearing argument, the High Court upheld the objection to the
proposed amendment and dismissed the application for leave to amend
the conditional counterclaim, with costs.


Absence
of reasons of court a quo


[15]     
Both parties are desirous to have the matter finalised although, they
admit, it would have been preferable for this court to have the
reasons for the order made by the court
a
quo
.
This court has recently reiterated the importance of reasons.[4]
It is not only the court of appeal that needs the benefit of reasons
but also the parties, especially the disappointed party. When the
latter is furnished with reasons it may decide that the points it
intended to raise may not have merit and therefore desist from
prosecuting an appeal. That saves costs and avoids an unnecessary
appeal and therefore advances the interest of the administration of
justice, especially where the matter appealed against is
interlocutory in nature and still needs to be referred back to the
trial court.


[16]     
The occasions where appeals are adjudicated upon without reasons must
be very rare. The appellant must demonstrate that a genuine attempt
was made to obtain the reasons and that the presiding judge was not
forthcoming. That affords this court the opportunity to censure the
judge if there is a need to do so. It is not a good argument to say
that because the rules of court state the period within which
judgment ought to be given, the fact that within that period such
reasons were not given implies that the judge will not give the
reasons.[5]


[17]     
Given the myriad of interlocutory skirmishes that occur during the
lifespan of a case-managed case, it is a potentially impossible task
to expect the managing judge to give fully researched judgments on
each and every interlocutory motion that he or she has to
adjudicate.  However, as this court recognised, in
Buhrmann
parties have a right to
reasons. In addition, the obligation (or rather discipline) to give
reasons acts as an insurance against caprice and bias. The
self-imposed discipline to give reasons for one’s decisions has
the salutary effect on the judicial officer that he or she can only
act according to the law and the facts of the case; un-influenced by
extraneous factors.  That said, it must be accepted that the
extent of the reasons to be provided will depend on the circumstances
of the case.  In some cases the reasons for the order/ruling
will be obvious from the exchange between the parties and bench. As
often happens, a particular point might even be conceded in argument
and would clearly provide the basis for the ruling/order that
follows. It would be pedantic in the extreme to expect written
reasons in such circumstances.  Another important consideration
is whether or not the ruling on the interlocutory motion is
appealable.


[18]     
If the court’s order is appealable, the imperative to provide
more detailed reasons for the ruling is greater, if only to assist
the appellate court. Michael Legg observes:[6]



[T]he extent of a judge’s
duty to state reasons for a decision is related to the function to be
served by the giving of reasons, the importance of the point involved
and the likely effect of the decision on the rights of parties to the
proceedings. The more significant the decision, even if
interlocutory, the greater the need for, and extent of, reasons.’


[19]     
The following dictum of the Australian High Court (the highest court
of that jurisdiction) in
Dowling
v Fairfax Media Publications Pty Ltd (No 2)
[7]
is apposite:



[T]the extent of the reasons
given is to be proportionate to the significance of the issue being
considered. Where the case management step is more contentious, the
judge having heard from each party as to what they desire, they
should then state their reasons in greater detail, either orally or
in the form of a written judgment. It is not unheard of for a judge
to ask the parties whether they require reasons for the decision or
for one or more parties to request reasons. This type of interaction
between the bench and bar table assists in balancing efficiency with
judicial accountability.’


[20]     
It was because the parties were in agreement that the issue on appeal
is a confined question of law that we agreed to hear the matter
without reasons. We want to make clear that this should not be seen
as a precedent for parties rushing to this court to have appeals
determined without reasons.


Appellant’s
contentions on appeal


[21]     
On appeal, Mr Barnard on behalf of Ms Hartzenberg, relies principally
on the South African case of
Rustenburg
Platinum Mines v Industrial Maintenance Painting Services
[8]
for the
submission that the claims objected to are substantially the same as
the original claim and therefore had not become prescribed. Mr
Barnard buttresses his argument by reference to
Sentrachem
Ltd v Prinsloo;
[9]
CGU
Insurance Ltd v Rumel Construction
[10]
and
Aeronexus
Ltd v Firstrand Bank Ltd t/a Wesbank.
[11]
Based on these South African cases, counsel contends that the South
African courts adopt a more liberal and lenient approach to
amendments adding new claims – an approach to be followed by
our courts. I need to stress at once that South Africa has not yet
introduced judicial case management and great care must be exercised
in applying the practices of those courts when it comes to the
approach our courts should take in adjudicating interlocutory
motions. I need not say more about that in this appeal.


[22]     
Rustenburg
is authority for the proposition that what prescribes is a ‘debt’
or ‘a claim’ and not a ‘cause of action’. As
I will presently show, that line of authority has been correctly
followed by the High Court of Namibia. The reasoning goes that as
long as the plaintiff institutes a claim within the statutory three
year period, the interruption of prescription that was effected by
the institution of the original claim would apply to any other causes
of action that may relate to the same set of material facts that give
rise to the claimant’s right of action. Flowing from this, it
is argued on behalf of Ms Hartzenberg that the further claims
proposed to be added are simply an augmentation of the original
conditional counterclaim.


SBN’s
contentions on appeal


[23]     
Mr Tӧtemeyer for SBN does not cavil the common law position as
espoused in
Rustenburg,
but
contests the claim that the proposed amendments arise from the same
set of material facts as contained in the original conditional
counterclaim. Mr Tӧtemeyer maintains that the new claims rest
on an entirely different and unrelated factual matrix from the
original claims and that the new claims would rest on entirely
different evidence to sustain them, such as whether the towage and
storage fees were in fact incurred, whether it was reasonable and
necessary to incur such fees, and whether the fees themselves were
reasonably priced.


[24]     
The thrust of SBN’s argument in this court is that the two
claims (towing and storage) are new debts which arise from facts
which are entirely different and unrelated to those giving rise to
the original conditional counterclaim.  It is further contended
that not only are the facts to be proved to establish a cause of
action different as between the two sets of claims, but the relief
sought differs substantially. 


Law
on amendment to introduce a new claim


[25]     
As far as I am aware, there is no judgment of this court, and counsel
were not able to cite any, dealing with the proper approach to be
taken when prescription is raised to an amendment which introduces an
additional claim. In
Basfour
2482 v Atlantic Meat Market
[12]
Silungwe AJ stated that the fundamental or decisive question is
whether the amendment is the same or substantially the same as the
previous claim.


[26]     
The leading case in South Africa on a rule similar to our old High
Court Rule 28 is that of
Rustenburg.
The
facts of the case were as follows: A dispute arose between the
parties concerning monies owed under a construction contract that
were erroneously paid as the work entitling them to payment was not
completed. The contractor repaid some of the money that was allegedly
paid in excess, but refused to repay the rest. The claimant then sued
the contractor for the balance based on restitution in that the
contractor had been unjustly enriched at the claimant’s expense
and that the latter was entitled to repayment in
quasi-contract.
The claimant later sought to amend the claim to add an additional
claim founded on a purported oral contract between the parties. This,
evidently, is a different cause of action to one founded in unjust
enrichment which seeks to reverse shifts in wealth between two
parties, as opposed to vindicating their mutual agreements. It was
held that the key to resolving the dispute was to inquire as to the
exact definition of debt under the Act. The court relied on a
minority judgment of Trollip JA in
Evins
v Shield Insurance Co Ltd
[13]
who
construed ‘debt’ under the Prescription Act as connoting
‘a claim’ and not ‘a cause of action’.


[27]     
It was held in
Rustenburg
that a new claim does not arise merely because another cause of
action is contemplated in an amendment.  It was found that
although the cause of action differed from the allegations set out in
the particulars of claim, the relief claimed was the same. The court
went about resolving the matter by comparing the allegations and the
relief originally claimed against the proposed amendment to determine
if the right of action sought to be enforced in either was in essence
the same. The court was satisfied that what the claimant sought to
recover was money admittedly paid by it to the defendant for work and
material that had not as yet been done or supplied at the time of the
payment. Thus, the debt sought to be recovered either by way of the
particulars of claim as originally framed or in accordance with the
alternatives as set out in the proposed amendment, was the same.


[28]     
What one discerns from the judgment are the following general
principles:



(a)         
What
prescribes is a debt or a claim and not a cause of action;



(b)         
An
amendment will survive prescription if founded on the same or
substantially the same debt as the original claim;



(c)         
The
original claim and the one contained in the proposed amendment must
arise from the same set of material facts. The court must compare the
allegations and the relief to see if they are the same;



(d)         
The
assessment of whether the debts are the same or substantially the
same is necessarily a fact-sensitive question. Suffice it to say, it
is unwise to ossify this assessment into rigid rules.



(e)         
 Each
case must of necessity depend on its own facts.


Law
to facts


[29]     
The original conditional counterclaim in the amount of N$262 380,96
was allegedly for repairs and expenses incurred by Auto Tech in
respect of the subject vehicle. It was in relation to that debt that
the plaintiff obtained a cession from Auto Tech. The proposed
amendment seeks to introduce two further claims as follows:



(a)         
storage for
the period 17 January 2007 to October 2010 totaling N$156 630; and



(b)         
towing
costs from Oshakati to Tsumeb in or about 2007 in the amount of
N$7350.


[30]     
The claims sought to be introduced arose in 2007 as is apparent, and
unless they are substantially the same as the original claim, they
are hit by extinctive prescription.


The
cases cited are distinguishable


[31]     
The following cases were relied on by the appellant in support of the
present appeal:
Sentrachem
Ltd v Prinsloo;
[14]
CGU
Insurance Ltd v Rumel Construction
[15]
and
Aeronexus
Ltd v Firstrand Bank Ltd t/a Wesbank;
[16].
An examination of them will show how different they are to the case
before us.


[32]     
In
Sentrachem,
a
farmer used an integrated biological control method to eliminate a
pest call red scale from his orchard. The defendants then recommended
a pesticide to complement the biological control method to address
the problem of eelworm, which had a negative impact on the methods
used to control the red scale. This resulted in the obliteration of
the farmer’s crop, notwithstanding the fact that the plaintiff
contacted the defendants when he noticed the rise of red scale. The
plaintiff sued the defendants, arguing that they were negligent and
demanding payment to the tune of the value of the destroyed crop. The
plaintiff’s lawyers sought to amend the statements of claim,
adding further claims that the defendants averred were time-barred.
The court allowed the amendment because (a) no further amounts were
being claimed and (b) the actions brought were variations on the
initial theme of negligence, and they were readily recognisable from
the initial claims. In
Sentrachem,
the
same amount was being claimed, under the original summons or under
the amended version. In effect, the second was a fleshed out version
of the original that made reference to the guarantee.


[33]     
In
CGU
Insurance
,
the plaintiff, an engineering concern, suing the defendant insurer,
sought to amend their claim to include reference to two and not just
one contract of insurance. The substance of the dispute was whether
the insurers were liable to the plaintiffs to indemnify them in
respect of storm damage caused to the roads they were building in
Mozambique. Under the second contract it was alleged that there was
also a liability to indemnify the plaintiffs for the same damage. The
court allowed the amendment. It is highly significant that the
amended claim was, bar the exact contract sued upon, identical to the
original claim. They both concerned the same amounts, and arose out
of the same facts (ie the damage accruing to the construction during
a period of storm). In reality it was the same debt in the broad
meaning of that word, albeit pursued under a different cause of
action (ie a different contract).


[34]     
In
Aeronexus,
the
plaintiff serviced and cleaned aircraft. It entered into a contract
with the defendant for such services that was to last for 12 months,
and, if both parties agreed, would then extend indefinitely. As
security, Aeronexus had a lien over the defendant’s log books.
It sought to exercise the power under these liens when the defendant
could not pay Aeronexus upon its liquidation. After their
liquidation, the defendants issued a guarantee that their bank would
pay them the sum owed for the services, and the plaintiffs handed
over the log books. The bank refused to honour the guarantee when
Aeornexus
issued a first summons. That summons claimed ‘
in
respect of services rendered and goods sold’. Over three years
later, they sought to amend the summons to incorporate reference to
the guarantee. The claim thus relied on ‘bank guarantee issued
. . . pursuant to a lien exercised . . . against a third party’.
The appeal succeeded and the claimants were allowed to amend their
summons.


[35]     
Ms Hartzenberg as cessionary relies on two cessions, nothing else.
Her right of recourse against SBN is no greater than that of the
cedent (Auto Tech). The first cession is that of 4 July 2012 and it
reads as follows:



The cedent hereby cedes to the
cessionary all its right, title and entitlement to claim from the
owner of the vehicle with registration number N 876 T , a 2005 BMW
120i vehicle,
the costs of
the repairs effected to such vehicle in or about September 2010,

by the cedent, totaling N$262 380, 96, as reflected by annexure "A"
hereto.



The parties record that the cessionary
has purchased such vehicle from the cedent for valuable consideration
and that, by having paid and still paying the purchase price for the
vehicle, is entitled to the claims ceded to her.



The cessionary hereby accepts what are
ceded to her.’
(My
emphasis.)


It
is immediately apparent that the cession relates to repairs of a
vehicle and that the repairs occurred in September 2010.


[36]     
The second cession is dated 23 August 2012 and reads thus:



1.       
In addition to the cession of 4 July 2012, and to the extent
that
such cession only conferred upon or ceded to the cessionary limited
rights
, the cedent hereby
cedes to the cessionary all its rights, title and entitlement to
claim from the owner of the vehicle with registration number N 876 T,
a 2005 BMW 120i vehicle,
any
amounts in terms of any cause of action arising from or related to
the repairs effected to such vehicle by the cedent.



2.        
Without derogating from the generality of the above, the right, title
and entitlement to claim from the owner of the vehicle shall
encompass all claims in terms of causes of action such as:



2.1      
enrichment;



2.2      
negotiorum gestio;
and



2.3      
a tacit mandate to manage the affairs of the owner.



3.        
The parties record that the cessionary has purchased such vehicle
from the cedent for valuable consideration and that, by having paid
and still paying the purchase price for the vehicle, is entitled to
the claims ceded to her.



4.        
The cessionary hereby accepts what are ceded to her.’
 (My
emphasis.)


[37]     
Again, this supposedly augmented cession limits the rights to those
‘arising from or related to the repairs effected to such
vehicle by the cedent’. This must be understood by reference to
the recordal in the first cession that the repairs were effected in
September 2010. Nowhere in either cession is any mention made of
events prior to 2010, yet as I will soon show, the two proposed
amendments concern costs  allegedly incurred on the vehicle
prior to 2010.


[38]     
Against the backdrop of the cessions, I proceed to consider the
proposed amendment in the light of the objections raised and the
legal contentions of the parties.


[39]     
To buttress SBN’s argument, Mr Tӧtemeyer argued that a
comparison between the two sets of claims shows how different the two
debts are from each other.  The original conditional
counterclaim requires proof (and corresponding rebuttal) that the
repairs effected to the wreck by Auto Tech were:



(a)         
necessary
or useful;



(b)         
fairly and
reasonably incurred;



(c)         
reasonable
and fair as to quantum; and



(d)         
advanced
the interest of SBN.


In
addition, counsel argued, it requires proof (and corresponding
rebuttal) of the condition (value) of the wreck as received in
relation to the parts allegedly contributed towards its salvage by
Auto Tech.


[40]     
Mr Tӧtemeyer argued that the differences are apparent when one
considers the factual substratum underpinning the two sets of claim.
He argued that the further disputes that arise in relation to the
storage claim are:



(a)         
where and
for how long the wreck was stored;



(b)         
whether it
was necessary or reasonable to store the wreck where it was stored,
for the length it was stored and at the cost it was stored; and



(c)         
whether and
how the costs incurred in storing the wreck advanced SBN’s
interest at Auto Tech’s expense.


[41]     
Mr Tӧtemeyer does not in his heads of argument elaborate on the
elements to be dealt with but in my view the towing claim will
require proof and a corresponding rebuttal of:



(a)         
the actual
towing;



(b)         
by whom it
was done;



(c)         
the
reasonableness of the manner it was done and costs involved; and



(d)         
how the
towing advanced SBN’s interest at Auto Tech’s expense.


[42]     
The first proposed amendment which was objected to reads as follows:



3.12.2. Auto Tech furthermore
had a claim of N$7350 arising from towing in costs when the vehicle
was conveyed from Oshakati to Tsumeb.'


[43]     
On Ms Hartzenberg’s own version, the person who ‘delivered’
the wreck to Auto Tech ‘for repairs’ was Namupolo. It is
an important consideration that, again on Ms Hartzenberg’s own
version, Auto Tech instituted legal proceedings against Namupolo ‘for
payment of the amounts due to Auto Tech’ and obtained judgment
against Namupolo. It is a reasonable inference that those claims
against Namupolo involved towing and storage. That must explain why
the cession makes no reference to events prior to 2010 relative to
the subject vehicle. Mr Tӧtemeyer is therefore correct in his
submission that the allegations supporting the claim in paragraph
3.12.3 of the proposed amendment represent a new debt as they do not,
objectively assessed, arise from the same material facts as pleaded
in the original conditional counterclaim.


[44]     
The second proposed amendment objected to reads:



3.12.3. Auto Tech also had a
claim for payment of the storage costs incurred in respect of the
vehicle from 17 January 2007 to 7 October 2010, at N$100 per day,
plus VAT, amounting to N$156 630’.


[45]     
It is unnecessary to repeat the point I already made that the cession
is limited to repairs to the vehicle that occurred in September 2010.
The proposed amendment relies on facts unrelated to the repair of the
vehicle and on costs allegedly incurred prior to 2010. The repairs
referred to in the cession occurred in September 2010. No suggestion
is made in the proposed amendment whether the storage after September
2010 is in respect of the wreck or the reconstructed vehicle.


[46]     
Mr Barnard argued that Ms Hartzenberg relies on rights she enjoys
under the cessions ceded to her by Auto Tech ‘arising from
certain repairs and related expenses’ to the subject vehicle.
The repairs were allegedly done in 2010. (In fact, the alleged timing
of the repairs, being September 2010, is confirmed in the 4 July 2012
cession.) Mr Barnard’s reference to ‘related expenses’
is curious and is in any event not supported by the cessions. The
fact that allegations are made in the pleadings about events prior to
2010 does not make it a good point. Those allegations can only
survive if they can be justified by reference to the cessions. I
agree with Mr Tötemeyer’s submission that the cession only
transferred to the cessionary a right of action (
locus
standi
)
and that the cessionary has no greater right than the cedent enjoys.
The cedent recognises in the cession that the claims it has against
SBN relate to and arise from the repairs done on the car in September
2010.


[47]     
According to Mr Barnard, the two additional claims arise from the
same material set of facts underpinning ‘the pursuit of
defendant’s original claim’. Counsel suggests that they
are no more than an augmentation of the original claim and that they
fall squarely within the ambit of clause 2 of the second cession. The
augmentation argument is unsupported by the terms of the cessions
which, as I have shown, do not extend the rights being conferred to a
period prior to 2010. The addition of clause 2 in the second cession
does not assist Ms Hartzenberg because the rights of action
referenced therein can only relate to the repair of the vehicle.


[48]     
For all the reasons I gave in respect of the towing claim, the claim
for storage prior to 2010 cannot be sustained as being related to the
repairs. Therefore, as regards the second claim for storage, Mr
Tӧtemeyer is also correct when he says that the facts relied on
in support of that claim do not arise from the same material facts as
those that give rise to the original conditional counterclaim.


[49]     
I come to the conclusion, therefore, that the objection to the
proposed amendment is a good one as the proposed amendments do not
seek to enforce the same debt claimed in the original conditional
counterclaim. The proposed additional claims are new debts which were
instituted outside the prescription period and were properly refused.


Was
the objection properly taken
?


[50]     
During argument a suggestion was made by Mr Barnard that it was open
to the appellant to lead oral evidence about the admission of
liability. Mr Tӧtemeyer argued that the submission is in
conflict with Ms Hartzenberg’s own averments and the fact that
it was common cause between the parties that the amendment sought and
the objection raised thereto ‘would entail exclusively legal
argument’. Nowhere in the appellant’s affidavit in
support of the proposed amendment is any suggestion made that she
intended to rely on oral evidence to show that there was an admission
of liability that interrupted prescription.


[51]     
During argument Mr Barnard further suggested that the appellant had
in her affidavit left open the possibility of leading oral evidence
when she, in opposition to the respondent’s choice of
exception-like objection rather than by way of special plea raising
prescription, stated that the former procedural device denied her the
opportunity to avail herself the trial facilities of oral evidence
and cross-examination.  As I have already demonstrated, it was
alleged by Mr Mueller and admitted by Mr Behrens that resolution of
the dispute rested exclusively on legal argument. The concession by
Mr Behrens must be seen against the background that he also denied
that in this case there would be a deprivation of the trial
facilities of leading evidence and cross-examination.


[52]     
I agree with Mr Tötemeyer that such avenue was not open to the
appellant in view of the manner in which it conducted its case and
the fact that the court was entitled to assume that it was common
cause between the parties that the issue before it was to be
determined strictly as a matter of legal argument.


[53]     
As the court pointed out to Mr Barnard during argument, if there was
intended to be a reliance in due course on oral evidence showing the
admission of liability interrupting prescription, it was incumbent on
the appellant to, at the very least, foreshadow that in justification
of the amendment sought. That was not done except by raising it as a
hypothetical proposition.


[54]     
The new case management ethos compels parties to litigation to, at
the earliest available opportunity, identify and inform the managing
judge what the real disputes are between them. It is no longer
acceptable for litigants to be evasive; and woe betide the pleader
who relies on hypothetical propositions.


[55]     
It is inimical to the new ethos of judicial case management to fail
to fully set out one’s case at the earliest opportunity that
becomes available. It was therefore safe for the court
a
quo
to
assume that the amendment sought was not dependent on the appellant
in due course leading oral evidence to establish the interruption of
prescription.  It was therefore perfectly proper for the
respondent to plead prescription by way of an objection.


[56]     
The ground of appeal premised on the manner in which SBN raised the
objection is therefore also without merit and stands to fail.


Costs


[57]     
Both counsel agreed that costs must follow the event. I see no reason
to depart from the general rule.


The
order


[58]     
In the result the appeal is dismissed, with costs, consequent upon
the employment of one instructing and one instructed counsel.


____________________


DAMASEB
DCJ





____________________


SMUTS
JA





____________________


HOFF
AJA





APPEARANCES


APPELLANT:                                                   
T Barnard


                                                           
           
           Instructed
by Mueller Legal Practitioners


 


RESPONDENT:                                                
R Tötemeyer


                                                                       
           
Instructed by Behrens &
Pfeiffer 





[1]
Act 68 of 1969. In terms of s 11(d)
of the Prescription Act a debt prescribes after a period of three
years after the debt becomes due.




[2]
Trans-African
Insurance Co Ltd v Maluleka
1956
(2) SA 273 at 279;
Miller
v H L Shippel & Co (Pty) Ltd

1969 (3) SA 447 (T).




[3]
In terms rule
28(4) of
the
old Rules of the High Court, once an objection has been raised, the
party desiring to pursue the amendment must bring a formal
application for consideration by the court. See new rule 52(4).




[4]
Buhrmann &
Partners Consulting Engineers v Gϋnther Wilfred Garbade
,
Case No SA 25/2012, delivered on 19 October 2015.




[5]
The new rule 32(3) states that an
interlocutory ruling should be given within 15 days or if it
involves a complex question of law, the ruling must be given within
30 days. Annexure 10 to the High Court Practice Directives states
that reasons for interlocutory orders should be given within 4 weeks
from the date of the request.




[6]
 Legg. M. 2011. Case
Management and Complex Civil Litigation
.
The Federation Press, 246.




[7]
[2010] FCAFC 28 at (131).




[8]
[2006] 1 ALL SA 275.




[9]
1997 (2) SA 1 (A) at 15C–16D.




[10]
2004 (2) SA 622 (SCA).




[11]
[2011] ZASCA 42.




[12]
2011 (1) NR 164 (HC) at (8) and (13).




[13]
1980 (2) SA 814
(A)




[14]
1997 (2) SA 1 (A) at 15C–16D.




[15]
2004 (2) SA 622 (SCA).




[16]
[2011] ZASCA 42.