A judgment was handed down today in a matter we are involved in (we act for the Applicant/Defendant):
The Plaintiff instituted action to claim R700,327.98 which he said he lent and advanced to the Defendant for building works on two buildings she owns.
The Plaintiff amended his claim. The Defendant served her Notice of Intention to Amend her Plea in terms of Rule 28. The Plaintiff did not oppose the amendment but the Defendant bona fide failed to serve the amended Plea in the prescribed time.
When the Defendant noticed she never served her amended Plea, she again served the Notice of Intention to Amend in identical fashion as the first time. This time the Plaintiff raised an objection based on the Defendant seeking to introduce a new defence, constituting a withdrawal of several admissions, the amendment not being bona fide and the amendment being prejudicial to the Plaintiff.
The Defendant had to apply to court to allow her to amend her plea before the trial which starts on 30 January 2020.
Herewith some parts quoted from the Honourable Madam Justice Kubushi’s judgment (Gauteng North High Court) dated 18 December 2019:
“In Wendy Machanik Property Holdings CC v Guiltwood Properties (Pty) Ltd 2007 it was held that where a Defendant failed to respond to the amendments affected by a Plaintiff in terms of the provisions of Rule 22(3) ‘every allegation of fact…which is not stated in the Plea to be denied or to be admitted shall be deemed to be admitted’…
The Plea as it stands, amounts to a confession and avoidance. The Applicant (Defendant) had in the Plea made certain clear and unequivocal admissions which constituted the confession. She then in clear and unequivocal terms pleaded that the loan was waived and/or donated to her by the Respondent (Plaintiff) which constituted the avoidance. The result was that the Applicant had to prove such waiver and/or donation.
However, when the Respondent (Plaintiff) amended his particulars of claim he alleged that the original agreement was revived and/or a new agreement was entered into wherein the Applicant (Defendant) was to repay the said amount of R700,327.98. It meant that without an adjusted Plea to the amended particulars of claim, the Applicant (Defendant) admitted that the original agreement was revived and/or a new agreement was entered into wherein she was to repay the claimed amount of R700,327.98.
The parties agreed during the pre-trial conference that the donation/waiver remains in dispute. This means that the Applicant’s (Defendant) defence that the amount claimed by the Respondent (Plaintiff) from her was waived and/or donated is still extant.
When considering the pleadings filed on record as a whole, it is evident the issue between the parties is whether the amount claimed by the Respondent (Plaintiff) was waived and/or donated to the Applicant (Defendant). As for the new allegations contained in the amended particulars of claim, they do not bring a new cause of action but merely introduces fresh and alternative facts supporting the original right of action as set out in the case of action. Therefore, whether such allegations are admitted or not by the Applicant (Plaintiff) do not change the complexion of the issues that are determinable to assert the cause of action; which is whether the amount claimed was waived and/or donated to the Applicant (Defendant)…
I do not think there is any mala fide on the part of the Applicant (Plaintiff) in seeking to amend the Plea afresh…The Respondent (Plaintiff) will not be prejudiced by such amendment…
The application (to amend her Plea) is upheld and the Applicant is to pay the costs of the application.”