Skip to document
Welcome to StudocuSign in to access the best study resources
Guest user
0followers
HomeMy LibraryAsk AI
  • You don't have any recent items yet.
My Library
  • You don't have any courses yet.
  • You don't have any books yet.
  • You don't have any Studylists yet.

Eastern Cape Development Corporation v Cotterell NO and Others (EL5182023) 2024 Zaecellc 11 (16 April 2024)

Generally, a pleading which does not comply with the provisions of Uni...
Course

Criminal law (LAWS 2014)

941 Documents
Students shared 941 documents in this course
Academic year: 2018/2019
Uploaded by:
Student
Daniel Mogano
University of the Witwatersrand, Johannesburg
0followers
41Uploads
5upvotes

Recommended for you

Comments

Please sign in or register to post comments.

Students also viewed

Related documents

Preview text

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)

CASE NO.: EL518/

Reportable No

In the matter between:

EASTERN CAPE DEVELOPMENT CORPORATION Applicant

and

ANTHONY CHARLES PATRIC COTTERELL NO 1

st

Respondent

RUSSEL IAN GRIGG N 2 nd Respondent

ANITA BHIKA N 3 rd Respondent

________________________________________________________________

JUDGMENT

________________________________________________________________

CENGANI-MBAKAZA AJ

Introduction

[1] This is an application for the amendment of the pleadings in terms of

Uniform Rule 28 of the Uniform Rules of Court.

[2] The applicant is Eastern Cape Development Corporation (ECDC), a

legal entity duly established and constituted in accordance with Eastern Cape

Development Corporation Act 2 of 1997. The applicant’s principal place of

business is located at ECDC House, Ocean Terrace Office Park, Moore Street,

Quigney in East London.

[3] The first, second and third respondents are cited in their representative

capacities as co-trustees of Ronnie Motors Trust, a trust duly registered in terms

of the Trust Laws of South Africa and trading as Ronnie Motors.

[4] The respondents object to the proposed amendment.

[5] For consistency with the main action, the parties will be referred to as

they were previously. The applicant will be referred to as ‘the plaintiff’, and the

first, second and third respondents will be referred to as ‘the defendants.

The background facts

[6] The plaintiff is the owner of the immovable property currently occupied

by the defendants. On 13 March 2023, the plaintiff initiated legal action by

issuing summons against the defendants for the delivery of property. On 02

May 2023, the defendants filed a plea alleging that the plaintiff and the

defendants entered a lease agreement. The lease agreement was intended to

span a period of ten years with the option of renewal for an additional period of

thirty years. The defendants would pay a rental amount of R15 000 per month.

In addition to the terms and conditions of the lease agreement, the defendants

would be liable for the payment of rates and would, inter alia, be liable for the

maintenance of the property. The defendants pleaded that at the time the

summons were issued, the lease agreement was still in effect between the

parties and they have a right to occupy the property.

11.3. The above-referred to Constitutional imperative is echoed in

Preferential Procurement Framework Act N0. 5 of 2000 as amended and the

Public Finance Management Act 1 of 1999.

11.3. The purported agreement relied upon by the Defendant was not

authorised by any legislative provision and was contrary to the provisions of

Section 217 of the Constitution.

11.3. Accordingly, the purported lease as recorded in ‘RM1’ was not non-

compliant with the regulatory framework referred to above and in particular

there was no process which ensured the selection of the respondent in a fair,

equitable, transparent, cost-effective and competitive manner.

11.3. In addition, the purported lease agreement was non-compliant with the

Plaintiff’s Property, Policy Act and Procedure Manual (which effectively is the

Plaintiff’s supply chain policy relating to the letting of immovable property)

11.3. In terms of Clause 7 of such Policy (the policy is a public document

and available on the Plaintiff’s website) it is mandatory for all prospective

tenants (including the Defendant) to fully complete an application (annexure B

to Policy) and provide the following documentation:

11.3.9 Proof of banking details issued by the appropriate bank.

11.3.9. Latest 3 months bank statements.

11.3.9 Latest annual financial statements.

11.3.9. Registration documents.

11.3.9. Business plan.

11.3.9. ID documents of owners of the company.

11.3.9 Resolution from the Board Members.

1.3. Furthermore, the purported agreement in the present instance is not

compliant with Clause 7.1. of the Policy nor were the procedures set out in

Clause 7.1 thereof complied with.

11.3. There has in addition been non-compliant with Clause 7.1. of the

Policy in that the purported agreement of lease deviates from the standard

lease agreement annexure ‘’C’’ which was not approved by the legal

Department prior to signature.

11.3 Of more significance, Clause 7.1.3 of the Policy provides that the

lease agreement period shall be 3 to 5 years for industrial and commercial

property and in as much as the purported lease agreement far exceeds the

stipulated period, the reason thereof should have been documented in the

Property Allocation meeting minutes which was not the case.

11.3 The persons with authority to sign a lease agreement of those listed in

Clause 7.1.3 of the Policy.

11. Accordingly, the purported agreement is unlawful and of no force and

effect virtue of non-compliance with the statutory framework referred to above

and, under the circumstances, the Plaintiff is entitled to collaterally challenge

the Defendants’ assertion in its Plea that a void agreement of lease exists

between the parties.

11 Accordingly, the Plaintiff is entitled to an order setting aside any decision

to lease the property to the Defendant pursuant to annexure RM1 attached to

the Defendants ‘Plea and in particular is entitled to an order reviewing or

setting aside the conclusion of the purported lease agreement annexure

‘Between the Plaintiff and the Defendant.

By substituting the prayers with the following:

WHEREFORE, the Plaintiff prays for judgment against the Defendants (The

Trustees of the Trust) as follows:

(a) Ejectment of the Trust/and all those holding through them from the property

being RF 953 Mthatha commonly known as N0, 8 Industrial Road,

Norwood, Mthatha.

(b) In the alternative:

(1) An order setting aside the decision to conclude a lease agreement

between the Plaintiff and the Defendant

(2) An order reviewing and setting aside the conclusion of the aforesaid

lease agreement between the Plaintiff and the Defendant.

(3) Ejectment of the Trust/Defendants and all those holding through them

from the property being ERF 953 Mthatha commonly known as NO.

Industrial Road, Norwood Mthatha.

(c) Costs of Suit.

(d) Further and/or alternative”

[8] The defendants object to the proposed amendment on several grounds.

First, they argue that the plaintiff’s proposed amendment is mutually

[12] A party who wishes to apply for the amendment of the pleadings, as in

the present case, must comply with Uniform Rule 28 3 of the Uniform Rules of

Court.

3 ‘(1) Any party desiring to amend any pleading or document other than a sworn statement, filed in connection

with any proceedings, shall notify all other parties of his intention to amend and shall furnish particulars of the

amendment.

(2) The notice referred to in subrule (1) shall state that unless written objection to the

proposed amendment is delivered within 10 days of delivery of the notice, the amendment

will be effected.

(3) An objection to a proposed amendment shall clearly and concisely state the grounds upon

which the objection is founded.

(4) 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.

(5) If no objection is delivered as contemplated in subrule (4), every party who received

notice of the proposed amendment shall be deemed to have consented to the amendment and

the party who gave notice of the proposed amendment may, within 10 days of the expiration

of the period mentioned in subrule (2), effect the amendment as contemplated in subrule (7).

(6) Unless the court otherwise directs, an amendment authorized by an order of the court may

not be effected later than 10 days after such authorization.

(7) Unless the court otherwise directs, a party who is entitled to amend shall effect the

amendment by delivering each relevant page in its amended form.

(8) Any party affected by an amendment may, within 15 days after the amendment has been

effected or within such other period as the court may determine, make any consequential

adjustment to the documents filed by him, and may also take the steps contemplated in rules

23 and 30.

(9) A party giving notice of amendment in terms of subrule (1) shall, unless the court

otherwise directs, be liable for the costs thereby occasioned to any other party.

(10) The court may, notwithstanding anything to the contrary in this rule, at any stage before

judgment grant leave to amend any pleading or document on such other terms as to costs or

[13] The general approach to be adopted in applications for amendment of the

pleadings has been eloquently set out in numerous cases and summarised by

White J in Commercial Union Assurance Co Ltd v Waymark NO 4 as follows:

“1. The Court has discretion whether to grant or refuse an amendment 5.

2. An amendment cannot be granted for the mere asking; some explanation must be

offered 6.

3. The applicant must show that prima facie the amendment 'has something

deserving of consideration, a triable issue 7 '.

4. The modern tendency lies in favour of an amendment if such 'facilitates the

proper ventilation of the dispute between the parties 8 '

The party seeking the amendment must not be mala fide.

3. It must not 'cause an injustice to the other side which cannot be compensated by

costs' 9.

4. The amendment should not be refused simply to punish the applicant for neglect.

5. A mere loss of time is no reason, in itself, to refuse the application.

6. If the amendment is not sought timeously, some reason must be given for the delay.”

The parties’ legal submissions

[14] The plaintiff’s counsel argued that the proposed amendment is sought in

the alternative claim and will render no prejudice to the plaintiff. The essence of

the plaintiff’s case, so he contended, is that the lease agreement is of no force

and effect and therefore a subject of review; in that, the signatory was not

other matters as it deems fit’.

4 1995 (2) SA 73 (TK).

5 Caxton Ltd and Others v Reeva Forman (Pty) Ltd D and Another 1990 (3) SA 547 (A)

Corbett CJ stated at 565G:

6 per H Henochsberg J in Zarug v Parvathie NO 1962 (3) SA 872 (D) at 876C.

7 per Caney J in Trans-Drakensberg Bank Ltd (under Judicial Management) v Combined

Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D) at 641A.

8 Rosenberg v Bitcom 1935 WLD 115 at 117 a judgment by Greenberg J, as he then.

9 Watermeyer J, as he then was, in Moolman v Estate Moolman and Another 1927 CPD 27 at 29.

This will cause no prejudice to the defendants, instead an opportunity to

ventilate all these issues during the trial proceedings will not be lost. In this

regard, the defendants’ objection to the amendment of the pleadings is without

any merit.

[18] Regarding the alleged contradictions which are set out in the defendants’

objection to the amendment, it is common cause that the main claim relates to

the ejectment. The fact that the property belongs to the plaintiff is

uncontroverted. The alleged conclusion of the lease agreement is challenged at

paragraph 11 as an alternative claim. This is the gist of the plaintiff’s

application for the amendment of the pleadings. In this regard, I will apply the

principle distilled in Levitan’s case

12

and conclude that since the conclusion of

the lease agreement is challenged in the alternative claim, there is no

embarrassment in the proposed amended particulars.

[19] The last issue relates to the reference of the defendants in a singular form.

It is not in dispute that there are three defendants in this matter, in my view, the

typographical error cannot be allied with the vagueness of the pleadings.

[20] For all the reasons stated above, the application for the proposed

amendment to the plaintiff’s particulars of claim stands to be granted. The

objection to the amendment cannot succeed.

Order

[21] The following order is issued:

1. The plaintiff’s application for leave to amend is granted.

12 Supra fn 2.

2. The plaintiff shall bear the costs of the application for

amendment as they would have arisen had the application been

unopposed.

3. The defendants shall pay the costs of the opposed application

for leave to amend.

_______________________

N CENGANI-MBAKAZA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

Was this document helpful?

Eastern Cape Development Corporation v Cotterell NO and Others (EL5182023) 2024 Zaecellc 11 (16 April 2024)

Course: Criminal law (LAWS 2014)

941 Documents
Students shared 941 documents in this course

University: University of the Witwatersrand, Johannesburg

Was this document helpful?
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO.: EL518/2023
Reportable No
In the matter between:
EASTERN CAPE DEVELOPMENT CORPORATION Applicant
and
ANTHONY CHARLES PATRIC COTTERELL NO 1st Respondent
RUSSEL IAN GRIGG N.O 2nd Respondent
ANITA BHIKA N.O 3rd Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
CENGANI-MBAKAZA AJ
Introduction
[1] This is an application for the amendment of the pleadings in terms of
Uniform Rule 28 of the Uniform Rules of Court.
1

Students also viewed

Related documents