Jacobs v First National Bank, A Division of First Rand Bank Limited (2023/026151) [2024] ZAGPPHC 1394 (19 December 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1394 | Noteup | LawCite sino index ## Jacobs v First National Bank, A Division of First Rand Bank Limited (2023/026151) [2024] ZAGPPHC 1394 (19 December 2024) Jacobs v First National Bank, A Division of First Rand Bank Limited (2023/026151) [2024] ZAGPPHC 1394 (19 December 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1394.html sino date 19 December 2024 IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) Case Number: 2023-026151 (1) REPORTABLE: No (2) OF INTEREST TO THE JUDGES: NO (3) REVISED. DATE: 19/12/24 SIGNATURE: In the matter between: PETRUS JACOBUS DANIEL JACOBS                       APPLICANT and FIRST NATIONAL BANK, A DIVISION OF                  RESPONDENT FIRST RAND BANK LIMITED JUDGMENT Ramawele AJ Introduction [1]        This is an application for leave to amend the Applicant's plea. The application is opposed by the Respondent. For the sake of convenience in this application I will refer to the Applicant as the Defendant and the Respondent as the Plaintiff. [2]        The Plaintiff's claims against the Defendant are based on both liquid documents and liquidated amounts loaned and advanced to the principal debtor in respect of short-term direct loan agreement, revolving loan agreement for which overdraft facility the Defendant allegedly bound himself as surety and co-principal debtor with the principal debtor. [3]        The Summons was issued on or during March 2023. On or during October 2023 the Defendant filed its plea. [4]        It is noteworthy that both the overdraft and the loan agreements were concluded in 2007, more than twenty years ago and that the Defendant had allegedly bound himself jointly and severally as surety and co-principal debtor for the payment of all present and future debts of any kind of SOS PROTECT SURE CC (in voluntary liquidation), to the Plaintiff. The terms of the loan agreement are similar to those of the overdraft facility and is also in respect of SOS PROTECT SURE CC . [5]        The Plaintiff then launched an application for summary judgement. In support of this application, the Plaintiff stated that the various denials and defences raised by the Defendant are bad in law, bare, incorrect and do not amount to bona fide defences. [6]        In the plea, the Defendant amongst others, denied his identity number, that he had signed the suretyship agreement and stated further that the suretyship agreement is irregular, incomplete and void. The Defendant further avers that he has no knowledge of the principal debtor's conclusion of the short-term loan, no knowledge of the principal debtor's non-compliance with the short-term loan and no knowledge of the principal debtor's breach of the short-term loan. [7]        In some respects, the Defendant also acknowledges his indebtedness to the Plaintiff in respect of the short-term loan but still puts the Plaintiff to the proof thereof. This is one of the reasons why I found that the opposition to this amendment by the Plaintiff is not frivolous or vexatious. [8]        The summary judgement application was never proceeded with because the Defendant filed a notice of intention to amend the plea, and the parties subsequently agreed to finalize these proceedings before enrolling the summary judgement application. [9]        In the notice of intention to amend the plea, the Defendant denies his name and identity number as recorded in the Plaintiff's Particulars of Claim and further states that the Plaintiff misrepresented the nature and origins of the short-term loan agreement and disclosed it for the first time during the summary judgement proceedings by indicating that it was either lost, misplaced or had been destroyed. [10]      The nature and gravamen of the proposed amendments in respect of the revolving credit and the suretyship agreements are the same as those set out above in respect of the intended amendment of the short-term agreement. [11]      The other averments sought to be amended is that wherever in the plea where the Defendant had stated that he "noted' the allegations made by the Plaintiff, it should be substituted with "denied'. The reason for this intended amendment is that the Plaintiff had contended in the summary judgement application that wherever the Defendant had stated in the plea that he noted the allegations made by the Plaintiff, that should be construed by the court as an implied admission. This submission by the Plaintiff then triggered the filing of a notice of intention to amend the plea by the Defendant, probably ex abundanti cautela. [12]      I now proceed to consider whether the Defendant is entitled to be granted leave to amend its plea. Submissions by the parties [13]      The Plaintiff has contended throughout the proceedings that the Defendant has no defence but has brought the application to delay the hearing of the summary judgement application. One should take note that I am not considering an application for summary judgement, so the issue of a bona fide defence does not pertinently arise. I need not even consider whether any defence arising out of the proposed amendment raises triable or arguable points of law. [14]      In any event, at this stage of the proceedings the issue of a bona tide defence plays a limited role. In Twekwini Properties (Pty) Ltd v Picardi Hotels Ltd [1] the court held that " at the level of pleading, the allegations made are certainly reasonably open to the construction contended by the Defendant. The principle has been put as follows: the onus rests on the excipient who alleges that the amended pleading does not disclose a defence; he or she must establish that in in all its possible meanings, no defence is disclosed " [2] . [15]      The Plaintiff relies on the following passage from paragraph 8 of the Defendant's answering affidavit resisting summary judgement for its contention that this application is mala fide. The part relied upon by the Plaintiff states as follows " had I known that the Plaintiff did in fact not possess the originals and have no knowledge of the originals, I would not have made any admissions regarding their content. In fact, I hereby withdraw any admissions I have made on the alleged agreements, and I put the plaintiff to the proof of the alleged agreements ". [16]      Counsel for the Defendant was at pains to point out that this statement was made as a result of the implied meaning that the Plaintiff sought to draw from the Defendant's plea. The Plaintiff made this submission apparently to bolster its argument that the Defendant did not have a bona tide defence to successfully resist the granting of summary judgement. [17]      The Defendant, as it was submitted by CJ Mouton on his behalf, sought the amendment to clarify, amongst others, that when it was pleaded that the Defendant noted the allegations, the Defendant did not imply that he agreed with those allegations. I do not think I should consider further whether noting implies admission for purposes of pleading. These pleadings have been so slovenly drafted that I am inclined to believe Counsel for the Defendant when she submits that the noting of the allegation was not intended to be an admission, if noting an allegation implies an admission thereof for purposes of pleading. I make no such finding in that regard. Evaluation and analysis [18] In Moolman v Estate Moolman & another [3] it was held that: " the practical rule adopted in applications for amendments is that amendments will always be allowed unless the application to amend is ma/a tide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for purposes of justice in the same position as they were when the pleadings were first filed " [4] . [19]      The Moolman decision was followed in numerous other cases over the years. In Caxton Ltd & Others v Reeva Forman (Pty) Ltd [5] , it was held that "a court has a discretion to allow a party to amend its pleadings'' [6] . [20]      In Trans-Drukensburg Bank v Combined Engineering [7] , the court held that: " the aim of allowing an amendment of pleadings is to do justice between the parties by deciding the real issues between them. The Applicant bears the onus of showing that the proposed amendment will not cause irreparable prejudice to the other party. If a litigant has delayed in bringing forward his amendment, this is in itself, there being no prejudice to his opponent not remediable in the manner indicated above, is no ground for refusing the amendment '' [8] . [21]      Although it is clear that the Defendant has delayed in bringing this application for amendment, I do not think that the Plaintiff is prejudiced thereby. The application for amendment has frustrated the Plaintiff whose application for summary judgement was postponed sine die. But this is not enough to refuse leave to amend the plea. [22]      In Media 24 (Pty) Ltd v Nhleko & Another [9] the Supreme Court of Appeal held that: " the primary role of pleadings is to ensure that the real dispute between litigants is adjudicated upon, and that courts are loathe to deny parties the right to amend their pleadings, sometimes right up until judgement and that an exception when the amendment is mala fide made " [10] . [23]      Although I do not agree with Counsel for the Defendant that the Defendant had decided to file a notice of intention to amend because of the Plaintiffs allegation [11] that where the Defendant "notes" the allegations in the Plaintiff' Particulars of Claim instead of denying them, it should be construed as an admission, I will nevertheless give the Defendant the benefit of the doubt. [24]      From the perusal of the plea as well as the notice of intention to amend, it is clear that not only material facts have been pleaded but also arguments or conclusions of law. One should, however, be careful to punish a litigant for poorly drafted pleadings. [25]      In my view, the essence of the intended amendment is to flesh out the Defendant's denial in respect of the three agreements. [26]      This pleading raises a genuine dispute between the parties because the Plaintiff has also battled in its Summons to identify the Defendant and subsequently amended the Summons irregularly. Fortunately for the Plaintiff, the Defendant did not object thereto. Where a wrong party has been cited in the Summons and served, the Plaintiff cannot simply amend the Summons to identify the true party that it had intended suing. This does not suggest that the Defendant is entitled to be granted leave to amend for the aforesaid reasons but is merely illustrative of the manner in which the parties conducted the litigation in this matter. [27]      I am of the view that much more is required in this matter to find that the Defendant was mala fide as a result of what he had said in the above passage, particularly, when one considers the Plaintiffs own ambivalence as to the true identity of the Defendant and Plaintiffs amendment of the Summons. Whether such defences as may be introduced by way of the amendment raise triable issues, is for the court hearing the main action to decide. [28]      The issue of costs in an application to amend pleadings is governed by rule 28(9) of the Rules which provides: " A party giving notice of amendment from the court in terms of sub-rule (1) shall unless the court direct otherwise, be liable for the costs thereby occasioned to any other party " [29]      It is trite that a party seeks an indulgence from the court when making an application for the amendment of pleadings and such a party would usually be ordered to pay the costs unless the objection to the application by the other party 'is frivolous or vexatious. [30]      In determining the issue of costs, the manner in which the Defendant had drafted its plea and the stage at which the amendment was sought is material in justifying the objection to the notice of intention to amend. [31]      The Defendant waited until it received an application for summary judgement and suddenly applied for an amendment of its plea. Although the Applicant was within its rights to file a notice of intention to amend when the Plaintiff served it with a summary judgement application, the circumstances surrounding the filing of the notice of intention to amend is lamentable. The objection to the amendment by the Plaintiff is therefore neither unreasonable, frivolous nor egregious. [32]      I am however still of the view that the Defendant has made a proper case for leave to amend the plea. Order In the circumstances, the following order is granted: [1]        Application for leave to amend is hereby granted. [2]        The defendant is ordered to pay the costs of the application to the Plaintiff for leave to amend except those of opposition by the Plaintiff. [3]        Each party to pay its own costs in respect of costs of the opposition of this application. RATHAGA RAMAWELE ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION OF THE HIGH COURT, PRETORIA Date of hearing:       26 November 2024 Date of judgement: 19 December 2024 Appearances: For the Applicant: CJ Mouton instructed by Schuler Heerschop Pienaar Xaba INC For the Respondent: R van Dyk instructed by Michael Krawitz & Co [1] 2006 (2) SA 156 D&CLD [2] Id page 158 para [10] [3] 1927 CPD 27 [4] Id 29 [5] 1990 (4) SA 940 (C) [6] Id at 957G-H [7] 1963 (1) SA 289 Durban & Coast Local Division [8] Id 294A-B [9] (Case no: 109/22) [2023] ZASCA 77 (29 May 2023) [10] Id para [16] [11] In the plaintiffs founding affidavit in support of summary judgement sino noindex make_database footer start