South Africa: High Court, Northern Cape Division, Kimberley
Latest
amended version: 27 May 2025
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: 2129/2020
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In the matter between:
THE POOLING AND
SHARING JOINT VENTURE, A JOINT
VENTURE ESTABLISHED
BETWEEN RICHTERSVELD
MINING
COMPANY (PTY) LTD AND ALEXKOR LIMITED
Applicant/defendant
and
ALEXANDER BAY DIAMOND
COMPANY (PTY) LTD
(PREVIOUSLY KNOWN AS
SCARLET SKY INVESTMENT
60
(PTY)
LTD
Respondent/plaintiff
Heard on:
14/02/2025
Delivered on:
23/05/2025
Summary:
Pleadings. Application for amendment of pleadings in terms of Rule
28(4)
of the Uniform Rules of Court on notice and without notice of
motion supported by affidavit as contemplated in Rule 6. Application
necessary where amendment is substantial. Would the defendant’s
plea, if amended, be excipiable.
ORDER
In the result the
following order is made:
1.
The applicant/defendant is granted leave to amend its pleadings
within 14 days
of this order.
2.
Applicant/defendant is to pay the costs of the application as well as
the costs
of opposition.
JUDGMENT: APPLICATION
FOR AMENDMENT OF PLEADINGS
MAMOSEBO ADJP
[1]
The applicant (defendant) seeks leave to amend its pleadings in terms
of Rule 28(4) of the Uniform Rules of Court. This application is
opposed by the respondent (Plaintiff).
[2]
The applicant is Pooling and Sharing Joint Venture, A Joint Venture
established
between Richtersveld Mining Company (Pty) Ltd and Alexkor
Limited Transnet SOC Limited. The respondent/plaintiff is Alexander
Bay
Diamond Company (Proprietary) Limited (Previously known as
Scarlet Sky Investments 60 (Proprietary) Limited). For convenience I
will refer to the parties as plaintiff and defendant.
[3]
The issues that stand for determination are: (i) whether, without a
notice
of motion supported by an affidavit, there is an application
before court for adjudication and (ii) whether the defendant’s
proposed amendment if granted would result in a plea that is
excipiable.
[4]
At commencement of the hearing of this application, Mr Van Niekerk
SC,
for the plaintiff, raised a concern that pages 108 to 740
comprising about 632 pages, were irregularly inserted in the record
without
any explanatory affidavit and urged the court to ignore the
said documents. Mr Mabunda, for the defendant, explained that the
process
of discovery has not been finalised and asked the Court to
take judicial notice of the said documents. In all fairness it would
be sensible to only consider pages 1 to 108 of the papers for
purposes of this application.
[5]
On 14 March 2024 the defendant served the plaintiff with a notice of
its
intention to amend its plea in terms of Rule 28(1). The said
notice sets out the proposed amendments. On 28 March 2024 plaintiff
objected to the proposed amendment in terms of Rule 28(3). Rule 28(4)
reads:
‘If
an objection which complies with subrule (3) is delivered within the
period referred to in subrule (2), the party wishing to
amend may,
within 10 days, lodge an application for leave to amend.’
[6]
It was contended on behalf of the plaintiff that no application for
the
amendment served before this court since it was not brought by
way of notice of motion supported by an affidavit. The courts have
already drawn this distinction when a party is launching a fresh
application as contemplated in Rule 6 of the Uniform Rules of
Court
and when bringing an interlocutory application in the midst of
pending litigation. In this court’s unreported judgment
Cornelius
Amos Peterson t/a Peterson Quantity Surveying and Project Management
v Minister of Public Works[1]
the
Full Court reasoned:
‘The
court a quo correctly dealt with the objection by the defendant that
the plaintiff has failed to comply with Rule 6(11) of the
Uniform
Rules of Court in that the application was not filed by way of notice
of motion procedure supported by an affidavit explaining
the reasons
for seeking this amendment. As clarified in Yorkshire[2]
‘Notice’
in this subrule does not mean notice of motion. These proceedings
were already pending before court and the application
for an
amendment is incidental to such proceedings. Whereas the court a quo
found that an affidavit by the plaintiff was necessary
to explain the
circumstances leading to the change in the identity of the defendant,
I am of the view that this is not so serious
as to non-suit the
plaintiff in the amendment application since the Minister was already
an active participant throughout the proceedings.’
See
also De
Kock v Middelhoven [3]
and Swartz
v Van der Walt t/a Sentraten[4].
I therefore find that no
substantive application for leave to amend the pleadings was
necessary. It follows that the plaintiff must
fail on this score.
[7]
The second aspect for consideration is the objection by the plaintiff
that granting the defendant leave to amend its pleadings would still
be open to exception on the grounds that it will not disclose
a
defence, alternatively, it will be vague and embarrassing.
[8]
The genesis of this case stems from plaintiff’s claim for
damages
consequent upon an alleged repudiation and termination of an
agreement concluded on 06 October 2016 as well as plaintiff’s
equipment
installed at the defendant’s premises which is denied by
the defendant.
[9]
In the defendant’s notice of intention to amend dated 09 April
2020,
which runs from pages 46 to 73, its first special plea (paras 1
– 5) dealt with the non-compliance with Rule 41A of the Uniform
Rules of Court in that the plaintiff had not filed a notice
pertaining to referral of the dispute for mediation. The second
special
plea (paras 6 – 13) emphasised the dispute resolution
procedure contemplated in Clause 29 of the agreement concluded by the
parties and the fact that plaintiff has not followed this procedure
before litigating. The procedure allowed for the dispute to
be
considered first by the Chief Executive Officers of the parties and
should it remain unresolved, to be referred to an independent
mediator. Paras 14 – 33 is the defendant’s plea on the
merits. Paras 34 to 40 deal with the defendant’s counterclaim.
[10]
In its Notice of intention to amend the pleadings in terms of Rule
28(1) the defendant
seeks the following relief: the deletion in
entirety of paras 1 – 13, that is the first and second special
pleas; paragraphs
14 to 33 of the plea on the merits (the plea in its
entirety on the merits) as well as paras 34 to 40 of the
counterclaim, (that
is the deletion of the counterclaim in its
entirety. The same must be replaced as follows:
‘First
Special Plea: the contract is unlawful as it is prohibited by
statute.
1.
It is alleged at paragraph 6 of the amended
Particulars of Claim (“the POC”) that on 06 October 2016,
Alexander Bay
Diamond Company (Pty) Ltd (“ABDC” or the
“Plaintiff”) and Pooling and Sharing Joint Venture (the
“PSJV”
or the “Defendant”) concluded a
written agreement to market, value, sell and beneficiate diamonds
(the “agreement”).
The agreement is annexed to the POC as
Annexure “POC-1”).
2.
It is further alleged at paragraph 8 of the POC
that at the time of the conclusion of the Agreement, the Plaintiff
was represented
by Mr Daniel Nathan, alternatively an authorised
representative of the Plaintiff and that the Defendant was
represented by Mr Mervyn
Carstens (“Mr Carstens).
3.
It is common cause that the Agreement was
concluded pursuant to a Request for Proposal issued by the Plaintiff
on 04 March 2016
under tender reference number: R[…] (the “Tender”)
(also see the Agreement, clause 2.3).
4.
A copy of the advertisement for the Tender is
annexed hereto marked “DP-1” (the “Advertisement”)
and stipulates
that a Bidder for the Tender must meet inter alia the
following minimum requirements:
4.1
permits and licenses to conduct the business of
trading in and/or processing of rough diamonds and/or polished
diamonds; and
4.2
premises, safe custody and secure viewing of the
products.
5.
Six (6) entities including the Plaintiff submitted
bids for the Tender before the closing date.
6.
The Plaintiff’s bid (the “Bid”)
did not comply with the minimum requirements of the Tender in that
the Plaintiff
was not in possession of the necessary permits and/or
licences to conduct the business of trading in and/or processing of
rough
diamonds and/or polished diamonds.
7.
In its Bid, the Plaintiff submitted a Diamond
Dealer’s License (the “License”) issued to an
entity registered
as Daniel Nathan Trading CC. A copy of the License
is attached hereto marked “DP-2”.
8.
Moreover, in the Bid, the Plaintiff did not
include the minimum requirement of having a premises authorised for
the conduct of the
business of trading in and/or processing of rough
diamonds and/or polished diamonds.
9.
Chapter 3 of the Diamonds Act 56 of 1986 (as
amended) (the “Diamonds Act”) prohibits any person, being
in the possession
of unpolished diamonds; the sale of unpolished
diamonds; the purchase of unpolished diamonds; the dealing in
unpolished diamonds;
the processing of diamonds, unless he or she is
a producer; a dealer; the holder of the relevant permit referred to
in section
26 or is authorised thereto in writing by the South
African Diamond and Precious Metals Regulator (the “Regulator”).
10.
Section 28A of the Diamonds Act provides that no
licensee may be assisted by a non-licensee during the viewing,
purchasing, or selling
of unpolished diamonds at any place where
unpolished diamonds are offered for sale.
11.
Furthermore, section 44 of the Diamonds Act
provides that no person shall utilise any premises as a diamond
trading house unless
he or she holds a diamond trading house license
and those premises are registered as a diamond trading house in terms
of the Diamonds
Act.
12.
The Agreement enabling the Plaintiff to market,
value, sell and beneficiate diamonds on behalf of the Defendant
without the relevant
permits and licenses is in contravention of the
Diamonds Act and is therefore illegal, void ab
initio and consequently unenforceable.
Wherefore the Defendant
prays that the Plaintiff’s claim be dismissed with costs.
Second Special Plea: The
Contract is unlawful for Failure to Comply with State Procurement
Legislation.
13.
The award of the Tender to the Plaintiff was
unlawful as the Plaintiff failed to meet the minimum requirements of
the Tender as
stipulated in the Advertisement and dealt with above.
14.
Furthermore, the Advertisement stipulates that the
90:10 preference system would be applied to the Tender in terms of
the Preferential
Procurement Policy Framework Act 5 of 2000 (the
“PPPFA”).
15.
The 90:10 preference system allows for a maximum
of ten (10) points to be allocated for specific goals such as
contracting with
persons, or categories of persons, historically
disadvantaged by unfair discrimination on the basis of race, gender
or disability
provided that the lowest acceptable tender scores
ninety (90) points for price.
16.
In awarding the Tender to the Plaintiff, the Bid
Evaluation Committee (the “BEC”) did not conduct an
evaluation in accordance
with the 90:10 criteria, which conduct by
the BEC was in contravention of the PPPFA and therefore unlawful.
17.
The subsequent agreement was concluded in breach
of the applicable procurement prescripts which are designed to ensure
a transparent,
cost-effective and competitive tendering process and
is therefore unlawful and invalid.
18.
As an organ of state, the Defendant is subject to
the provisions of Section 217 of the Constitution of the Republic of
South Africa,
1996 (the “Constitution”) which requires
that when an organ of state contracts for goods and services, it must
do so
in accordance with principles of fairness, equitability,
transparency, competitiveness, and cost-effectiveness.
19.
Section 217 of the Constitution is echoed in
section 51(1)(a) of the Public Finance Management Act, 1998 (the
“PFMA”),
the PPPFA and implemented through the National
Treasury Regulations which provide that contracts for goods and
services for certain
value thresholds have prescribed procedures
including quotations or bidding procedures.
20.
Failure by the BEC to implement the 90:10
preference system as provided for in the Advertisement is a violation
of the Constitution
and should not be sanctioned by the court.
21.
Section 172 of the Constitution provides that when
a court is deciding a constitutional matter within its power, a court
must declare
that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency and make
an order
that is just and equitable.
22.
The award of the Tender and the consequent
Agreement must be declared invalid.
23.
Insofar as a just and equitable remedy, the
Plaintiff, that is complicit in impropriety and illegality should be
precluded from
profiting from such activities.
Wherefore the Defendant
prays that the Plaintiff’s claim be dismissed with costs.
Plea on the merits
Ad Paragraph 1
24.
The contents of this paragraph are admitted.
Ad paragraph 2
25.
The contents of this paragraph are admitted.
26.
In amplification of such admission, it is further
stated that the PSJV was established in terms of section 54(2) of the
PFMA, whereby
the accounting officer of Alexkor SOC Limited
(“Alexkor”) must in writing inform Treasury of Alexkor’s
role in
the PSJV and submit such notice to the Minister for approval
of the transaction, being participation of Alexkor in an arrangement
similar to an unincorporated joint venture.
Ad paragraph 3
27.
The contents of this paragraph are admitted.
Ad paragraph 4, 4.1 to
4.4
28.
The contents of these paragraphs are admitted
insofar as they correctly reflect the contents of the unanimous
resolution.
29.
In amplification of such admission, it is further
stated that the appointment of independent contractors by the
executive committee
of the joint board is subject to section 217 of
the Constitution and other relevant legislation which prescribe for a
fair, equitable,
transparent, competitive, and cost-effective
procurement process.
Ad paragraph 5
30.
The contents of this paragraph are admitted.
Ad paragraphs 6 to 8
31.
The contents of these paragraphs are admitted.
32.
It is, however, denied that the Agreement was
lawful, valid and/or enforceable for the reasons stated above.
Ad paragraphs 9, 9,1 to
9.6
33.
The contents of these paragraphs are admitted
insofar as they correctly reflect the contents of the Agreement.
34.
It is, however, denied that the Agreement was
lawful, valid and/or enforceable for the reasons stated above.
Ad paragraph 10
35.
The contents of this paragraph are denied and the
Plaintiff is put to proof thereof.
Ad paragraph 11
36.
The contents of this paragraph are admitted
insofar as they correctly reflect the contents of clause 4.1.
37.
For the reasons stated above, the Defendant pleads
further that the Agreement was illegal and void ab initio.
Ad paragraph 12 to 15
38.
The contents of these paragraphs are admitted
insofar as they correctly reflect the contents of the documents and
correspondence
referred to therein.
39.
For the reasons stated above, the Defendant
further pleads that there can be no repudiation of an Agreement that
is illegal and
void ab initio.
40.
In the alternative, the Defendant pleads that it
is entitled to terminate the Agreement forthwith in terms of clause
19.2. The Plaintiff
knowingly conducted the business of trading in
and/or processing of rough diamonds and/or polished diamonds without
the relevant
permits and/or licences to the prejudice of the
Defendant and its reputation and in contravention of the Defendant’s
policies
and procedures.
41.
The remaining contents of these paragraphs are
denied insofar as they are in conflict with what is stated herein.
Ad Paragraphs 16.1 to
16.3
42.
It is admitted that the Defendant cancelled the
Agreement.
43.
The remaining contents of these paragraphs are
denied insofar as they are in conflict with what is stated herein
above.
Ad paragraphs 17 to 19
44.
The contents of these paragraphs are denied.
45.
The amounts claimed by the plaintiff (which are
denied) are a result of an Agreement prohibited by statute. An
illegal contract
does not create obligations and consequently it
cannot be enforced.
46.
Alternatively, the Agreement is unlawful for
failure to comply with section 217 of the Constitution and must be
declared invalid
in terms of s 172 of the Constitution. Insofar as
the remedy, the Defendant pleads that parties who are complicit in
impropriety
and illegality should be precluded from profiting from
such activities.
47.
In the alternative, the Defendant pleads that no
amounts are owing to the Plaintiff as no value was received as the
Plaintiff was
selling the Defendants rough diamonds at a price that
is ostensibly lower than the market price.
48.
Further, alternatively, the Defendant denies the
quantum claimed and puts the Plaintiff to the proof thereof.
Ad paragraph 20 to 25
49.
The contents of these paragraphs are denied.
50.
Annexure “POC4” and “POC5”
reflect that “the items” were purchased and installed at
the behest
of Daniel Nathan Trading (Pty) Ltd and not the Plaintiff.
The Plaintiff’s ownership of “the items” is,
therefore,
denied.
51.
In the alternative, section 23 of the Diamonds Act
provides that the erection and operation of machinery designed or
adopted for
the polishing of diamonds is prohibited unless a person
is a diamond beneficiator or researcher; an employee acting in the
course
of his or her employment with that diamond beneficiator or
researcher; or is authorised thereto in writing by the Regulator.
52.
For the reasons stated above, specifically section
23, the installation of “the items” by the Plaintiff
(which is denied)
is illegal and unenforceable.
Wherefore the Defendant
prays for the Plaintiff’s claim to be dismissed with costs.
[11]
In Media24
(Pty) Ltd v Nhleko[5]
‘In
coming to its conclusion to refuse the application for amendment, the
high court paid scant regard to the purpose of pleadings,
which is to
define the issues between the parties. Because the primary role of
pleadings is to ensure that the real dispute between
litigants is
adjudicated upon, courts are loathe to deny parties the right to
amend their pleadings, sometimes right up until judgment
is granted.
An exception is made when the amendment is mala fides or will result
in an injustice which cannot be cured by a costs
order. Thus, the
power of a court to refuse amendments is confined to considerations
of prejudice or injustice to the opponent.’
[12]
Mr Mabunda, on the one hand, argued that the proposed amendment
introduces triable and sustainable
defences while Mr Van Niekerk SC
objected to the granting of the amendment sought claiming that it
would render the pleadings excipiable.
[13]
I agree with the approach by King AJ in R
M Van De Ghinste & Co (Pty) Ltd v Van De Ghinste[6]
where
it is stated:
‘What
emerges clearly from these various decisions is that for a Court,
faced with an objection to a proposed amendment to a pleading
on the
ground that the pleading as amended would be excipiable, to confine
itself to an enquiry as to whether or not the question
of
excipiability is arguable – ie whether or not the pleading may be
excipiable – is an expedient which will be resorted to only
in
exceptional circumstances and that ordinarily the Court will decide
on the question and if the Court’s decision is that the
pleading as
amended would be excipiable the Court will refuse the application for
amendment.’
[14]
The plaintiff’s contention pertaining to the proposed first
special plea are the following:
first, that the defendant’s
reliance on a contravention, of the Diamond’s Act, 56 of 1986,
(the Diamonds Act) more
specifically of s 20A, where it has opted to
exclude a phrase in the section where the Diamond Export Exchange
Centre (the DEEC)
can be utilised by the plaintiff to sell unpolished
diamonds; the plaintiff argued that s 20 is not directed at an entity
that
does not have a licence but precludes certain behaviour on the
part of the licensee; the defendant made further reference to the
plaintiff’s production of a Diamond Dealer’s Licence
issued in favour of Daniel Nathan Trading CC. Plaintiff maintains
that clause 20.3 of the agreement specifically refers to not being in
possession of the required licence “at the date of first
tender” and the defendant does not allege that that was the
case. The plaintiff contends that it is inexplicable how the use of
this licence
would result in an agreement that is void ab initio.
It was submitted on behalf of the plaintiff that should these
amendments be permitted pertaining to the first special plea, it
would
be excipiable for failing to sustain a defence alternatively,
for being vague and embarrassing.
[15]
In as far as the second special plea is concerned, plaintiff
challenges the stance by the defendant
that prescripts governing an
organ of state have not been complied with, maintaining that the
defendant is cited as a Joint Venture
and not as an organ of state
subject to the Public Finance Management Act, 1999 and the
Preferential Procurement Policy Framework. Plaintiff denies that the
second special plea is not a defence open to the defendant.
Plaintiff
further denies that defendant has established the type of control as
contemplated in Mittalsteel
South Africa Ltd (Formerly Iscor Ltd) v Hlatshwayo[7]
(the
control test). Resultantly, plaintiff moves for the dismissal of the
application for leave to amend with costs, including those
of senior
counsel.
[16]
The defendant maintains that discovery has not been completed, and
contends that there is admissible
evidence, which, if placed before
Court, will influence the Court’s decision as enunciated by
Plasket AJA, writing for the
majority, in Picbel
Groep[8]
:
‘…In
Dettmann
v Goldfain and Another [1975
(3) SA 385 (A) at 400A – B] this court stated that courts are,
in some instances, reluctant to ‘decide upon exception questions
concerning
the interpretation of a contract’. Those circumstances
are, first, where the entire contract is not before the court; and
secondly,
where it appears from the contract or the pleadings that
‘there may be admissible evidence which, if placed before the Court,
could
influence the Court’s decision as to the meaning of the
contract’, provided that this possibility is ‘something more than a
notional
or remote one’.’
[17]
Notwithstanding that defendant does not deny the conclusion of the
agreement between the parties,
nevertheless its contention in support
of the first special plea is that the award of the tender under
tender number R[…] and
the conclusion of the contract were unlawful
as there was a contravention of the Diamonds Act. Defendant contends
further that
the plaintiff was not even a holder of the Dealer’s
Licence and submitted a licence of a company, Daniel Nathan Trading
CC,
that was not even a party to the tender. It is inconceivable how
using this company’s licence at the DEEC would assist the
plaintiff, so the argument went. In the proposal, plaintiff did not
state that it will use the DEEC but relied on the trading house
of
Daniel Nathan Trading situated at a different address than the DEEC.
The licences are also not transferrable.
[18]
Regarding the attack by the plaintiff that the defendant is cited as
a Joint Venture and
not individually and therefore not an organ of
state governed by the procurement legislation, the defendant’s
explanation
is that the Joint Venture comprises Alexkor SOC Limited
(Alexkor) and the Richtersveld Mining Company (Pty) Ltd (RMC).
Alexkor
is a public entity listed in Schedule 2 of the Public Finance
Management Act, 1998 whereas RMC is a private entity with limited
liability. Both make up the defendant established in terms of s 54(2)
of the PFMA read with the Deed of Settlement, and the Unanimous
Resolution of the Interim Joint Board. Of significance, and relying
on Mittalsteel, is that Alexkor holds a 51% controlling
interest in the defendant, it has contributed financially up to R200
million for the joint
operations of the defendant, and the
chairperson of the joint board is appointed by the Minister of Public
Enterprises. The joint
Board must therefore file quarterly reports in
line with the PFMA.
[19]
The plaintiff seems to challenge the defendant’s reliance on
its assertion that it
is an organ of state and must comply with the
procurement legislation claiming that the control test does not
apply. But the SCA
in Mittalsteel[9]
remarked:
Minister
of Education, Western Cape, and Others v Governing Body, Mikro
Primary School, and Another gave this Court the opportunity
of
pointing out that ‘any institution exercising a public power or
performing a public function in terms of any legislation is
an organ
of State’. That is, with respect, correct and was as far as it was
necessary for the Court to go. The control test was
not needed. The
school governing body was obviously performing a public function and
thus was an organ of State. The control test
is useful in a situation
when it is necessary to determine whether functions, which by their
nature might as well be private functions,
are performed under the
control of the State and are thereby turned into public functions
instead. This converts a body like a
trading entity, normally a
private body, into a public body for the time and to the extent that
it carries out public function
I
mention these approaches not because the control test is
inappropriate in the present case but to emphasise that the test may,
under given circumstances, not be the most suitable one. In an era in
which privatisation of public services and utilities has
become
commonplace, bodies may perform what is traditionally a government
function without being subject to control by any of the
spheres of
government and may therefore, despite their independence from
control, properly be classified as public bodies.’
[20]
It is prudent to bear in mind that exceptions are not to be dealt
with in an over-technical manner.
See Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA[10],
and
as such, a court looks benevolently instead of over-critically at a
pleading. See also First
National Bank of Southern Africa Ltd v Perry N.O.[11]
I am therefore unable to
agree with the submission that the pleading will be excipiable.
[21]
Regard being had to the contentions and submissions by counsel on
either side, and mindful of
the purpose of the pleadings, which is to
define the issues between the parties, I have no reason to deny the
defendant the right
to amend its pleadings at this stage. The Court
has the power to grant the amendment provided no prejudice would be
occasioned
thereby. One of the cornerstones of justice is the
determination to arrive at the truth. The amendment must be allowed.
[22]
There remains the question of costs. It is trite that a party seeking
an indulgence should pay
the costs of the application, such costs to
include the costs of opposition where it was reasonable and not
vexatious or frivolous.
The applicant argued that the opposition by
the plaintiff for the amendment was unmeritorious and vexatious if
regard is had to
the unlawfulness of the tender award to the
plaintiff. It is for this reason that the plaintiff must be ordered
to pay the costs
of opposition. The plaintiff urged the court to
dismiss the application for leave to amend with costs, including
those of senior
counsel.
[23]
Van Winsen AJ in Myers
v Abramson[12]
remarked
as follows:
‘It
does not appeal to me as being fair and reasonable that the opponent
to applicant for an indulgence should be put in a position
that he
opposes the granting of the indulgence at his peril in the sense that
if the amendment is granted he cannot recover his
costs of opposition
or may even have to pay such costs as are occasioned by his
opposition. It seems to me that the applicant for
the indulgence
should pay all such costs as can reasonably be said to be wasted
because of the application, these costs to include
the costs of such
opposition as is in the circumstances reasonable, and not vexatious
or frivolous.’
I am therefore not
persuaded that the opposition was unreasonable, frivolous or
vexatious to attract a cost order against the plaintiff.
[24]
In the result the following order is made:
1.
The applicant/defendant is granted leave to amend
its pleadings within 14 days of this order.
2.
Applicant/defendant is to pay the costs of the
application as well as the costs of opposition.
MC MAMOSEBO
ACTING DEPUTY JUDGE
PRESIDENT
NORTHERN CAPE DIVISION
|
For
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Adv.
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Instructed
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Messina
c/o
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For
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Adv.
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Instructed
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Hector
c/o
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[1]
Per
Mamosebo ADJP, Lever J and Nxumalo J, Case No 1423/2010 at para 15,
delivered on 15 November 2024.
[5]
2023
JDR 1782 (SCA) para 16
[8]
Picbel
Groep Voorsorgfonds (In Liquidation) v Somerville, and Related
Matters 2013 (5) SA 496 (SCA) para 39
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