REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: I 1351/2012

In the matter between:

STANDARD BANK NAMIBIA LIMITED RESPONDENT/PLAINTIFF

and

CHRISTELLE HARTZENBERG APPLICANT/1st DEFENDANT

AUTO TECH PANELBEATER CC 2ND DEFENDANT

RAINIER ARANGIES 3RD DEFENDANT

Neutral citation: Standard Bank Namibia Limited v Hartzenberg and others (I 1351/2012)

[2015] NAHCMD 137 (11 July 2014)

Coram: GEIER J

Heard: 07 and 10 July 2014Delivered: 11 July 2014Released: 10 May 2016

Flynote: Practice - Pleadings - Amendment of - Application opposed on ground that claim

prescribed – Court confirming that, in appropriate circumstances, an intended amendment,

could be refused if such amendment would introduce a new claim, which had become

prescribed – court holding further that for purposes of deciding whether a debt has become

prescribed it would first be necessary to identify ‘ … what the `claim' was in the broad sense

REPORTABLE

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of the meaning of that word.’ In the further exercise - where a court is then called upon to

decide whether a summons or a counter claim interrupts prescription - it will become

necessary to compare all the allegations and the relief claimed in the summons, with the all

the allegations and relief claimed in the amendment, to see if the debt is, substantially, the

same or not and whether the claim would “relate” to the same set of material facts, that beget

the plaintiff’s rights of action.’

In addition the principles, pertaining to amendments, in general are to be kept in mind, in

terms of which the court will allow an amendment where the main issue between the parties

remains the same - as the aim is to achieve - through the amendment - that the true issues

are formulated onto the record, in order to do justice between the parties.

The technique, to be employed, for purposes of deciding whether the claims, relate to the

same set of facts, that beget the plaintiff’s right of action, is to firstly to embark on a

comparison of the allegations and relief, claimed in the original conditional counter-claim, with

the averments and the relief, claimed in the intended amendment. In this regard it should be

taken into account that the fact, that there are differences between the facta probanda,

necessary to prove the original cause of action, and those, necessary to prove the amended

claims, do not invariably have to lead to the conclusion that the original claim does not

interrupt prescription. It also being relevant in this regard to determine whether the original

right of action and relief claimed is the same, or substantially the same, as in the amendment.

In casu – the analysis of the pleadings - exposed that the differences between the original

counter-claim and those claims, which the applicant sought to introduce, were so substantial,

so as to translate the additional claims, into different, or substantially different rights of action.

The analysis also showed that the facta probanda, necessary to prove the original counter-

claim, were vastly different from those, that underpinned the two new claims, which the

applicant sought to introduce, by way of amendment. Court therefore holding that the

additional claims simply did not relate, sufficiently, to the same set of material facts that begot

the applicant’s original right of action. Application for the amendments accordingly refused.

Summary: The facts appear from the judgment

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ORDER

1. The 1st defendant’s application for leave to amend her conditional counterclaim is

dismissed with costs, such costs to include the costs of one instructed- and one

instructing counsel.

2. In so far as it may be necessary the applicant/1st defendant is also ordered to pay the

wasted costs occasioned by the postponement of 07 July 2014.

3. The matter is postponed to 22 July 2014 at 08h30 for a status hearing.

JUDGMENT

GEIER J:

[1] The applicant, in this opposed application for leave to amend her conditional counter-

claim, had originally, and in response to the action instituted against her, by the respondent,

for the delivery of a 2005 BMW motor vehicle, conditionally, counter- claimed thereto in which

counter- claim, and in the event of the court upholding the respondent’s claim, the applicant

then would claim payment of the sum oN$262 386 86 for repairs, effected to the vehicle, in

question.

[2] She now wishes to also augment her original counter- claim and there, by way of

amendment, seeks to introduce two further claims, namely one for payment of tow-in charges

and secondly a claim in regard to storage costs. The said storage costs were apparently

incurred during the period of 17 January 2007 to 7 October 2010, whereas the tow-in charges

were incurred sometime in or about 2007.

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[3] The relevant Notice to Amend, for purposes of introducing such further claims, was

delivered on 6 November 2013.

[4] The respondent objected to the intended amendment by notice dated 15 November

2013.

[5] The objection contained therein was made on the following basis:

‘1. In terms of paragraph 3.12.3 of the proposed Amended Conditional Counterclaim, the

First Defendant seeks to introduce a claim for storage costs for the period 17 January 2007 to 7

October 2010 and in a total amount of N$156,630.00.

2. Ex facie the aforesaid allegations made, storage costs are being claimed for a period which

expired more than 3(three) years before the date of the delivery of the First Defendant’s Notice

of Amendment.

3. In terms of paragraph 3.12.2, read with paragraph 3.1, of the proposed Amended Conditional

Counterclaim, the First Defendant seeks to introduce a claim in the amount of N$7,350.00 in

respect of tow-in costs from Oshakati to Tsumeb, which tow-in costs – in terms of the

allegations made – were incurred “In or about 2007”.

4. In the premises it is alleged that the aforesaid claim for storage costs also arose more than

three years before delivery of the First Defendant’s Notice in terms of Rule 28.

5. In the premises, the First Defendant – by seeking to introduce the aforesaid two claims of

N$156,630.00 and N$7,350.00 – impermissibly attempts to resuscitate claims which have

already become prescribed in terms of Section 11(d) of the Prescription Act, No. 68 of 1969.’

[6] The applicant nevertheless pursued the intended amendment by delivering the above-

mentioned application for leave to amend, which was then opposed.

[7] The basis of the application was formulated in paragraphs 8 to 16 of the founding

papers, deposed to, by the applicant’s legal practitioner of record, Mr Mueller:

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‘8. The only question to be determined for purposes of this application is accordingly

whether the portions of the claims of the first defendant referred to in the notice of amendment have

become prescribed, or not. If they did become prescribed the prejudice of the plaintiff would arise

from the fact that it would have to deal with claims that, effectively, are not triable. If the claims did not

become prescribed, the plaintiff would not suffer any prejudice arising from the amendment.

9. I respectfully point out that, in most instances, a plea of prescription cannot be determined or

adjudicated upon as if raised as an “exception”. In the latter case, no oral evidence is permitted to be

placed before the court, and neither of the parties is permitted to cross-examine the witnesses of their

opponent(s). In the event of prescription being pleaded, oral evidence in relation to such plea is

permitted, cross-examination is permitted and the ordinary rules relating to trial proceedings apply.

10. If the objection of the plaintiff has to be dealt with as if it were an exception, the first defendant

would be deprived of the opportunity to avail herself of the trial facilities set out in the last sentence of

the aforegoing paragraph.

11. I respectfully submit that it is furthermore not proper to object to an amendment in its entirety, if

only portions of such amendment appear (to the plaintiff) to be objectionable.

12. 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.

13. The nub and essence of such argument would be that our courts have progressively adopted

the attitude over the recent years that once a claim has been duly quantified and pursued within the

applicable three-year period, an extension, supplementation or elaboration of such claim would be

permitted outside the three-year period.

14. In a variety of instances in our case law new causes of action have been permitted to be

pursued outside such three-year period, provided that the initial institution of an action eventuated

before the main claim upon which a party relies became prescribed. I do not suggest or admit that the

claims objected to by the plaintiff are claims arising from new causes of action. I simply record what is

stated in the first sentence of this paragraph to demonstrate the more lenient approach of our courts to

the pursuit of claims.

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15. I accordingly respectfully pray that the first defendant be granted leave to amend her

conditional counterclaim in the manner as sought.

16. Since the objection to the amendment sought by the first defendant is, I respectfully contend,

completely misconceived, I pray that the plaintiff be ordered to pay the costs of the first defendant

incurred in this application, including the costs of one instructed and one instructing counsel.’

[8] The relevant parts from the answering papers deposed to, on behalf of the respondent,

by its legal practitioner, Mr Behrens, appear at paragraphs 5, 8, 10, 11.1 and 12 and 13 of his

answering affidavit. He formulated his clients grounds of opposition as follows:

‘5. AD PARAGRAPH 7 THEREOF

The prejudice of having to deal with claims which have become prescribed at the trial, is self-evident.

This aspect will further be dealt with in argument. It is respectfully submitted that, for that reason,

amendments which seek to introduce claims which did become prescribed should not be allowed.

8. AD PARAGRAPH 9 AND 10 THEREOF

I dispute the contents thereof. This aspect will likewise be dealt with in argument. I state that the

portions of the amendment objected to, relate to new debts which have become prescribed and which

the first defendant impermissibly seeks to resuscitate by way of an amendment.

10. AD PARAGRAPH 13 THEREOF

Again, the issues referred to are matters for legal argument and will be dealt with as such. I merely

record that I dispute that the claims sought to be introduced are a mere extension or supplementation

or elaboration of the claims pursued earlier. I repeat that the claims sought to be introduced, on a

proper interpretation, constitute new debts, which the first defendant seeks to introduce by way of an

amendment and which have become prescribed. I further record that – as will become clear when

legal argument is presented – the plaintiff does not necessarily agree that the principles referred to

have been correctly expressed by the first defendant, nor, for that matter, that the issues referred to

find application in this case.

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11. AD PARAGRAPH 14 THEREOF

11.1 The claims sought to be introduced not only constitute new causes of action, but also

new debts. This will further be dealt with in argument.

12. AD PARAGRAPH 15 THEREOF

I dispute that the first defendant is entitled to the relief sought and pray that the application for

amendment be refused.

13. AD PARAGRAPH 16 THEREOF

I deny the contents thereof and submit that it is indeed the amendment sought which is misconceived.

In any event, I submit that even if amendments were to be granted, it would, in that event, constitute

an indulgence to the first defendant and that the latter should then bear the cost of same. That would

include the costs of opposition, which – I respectfully submit – would in all circumstances have been

reasonable.’

[9] Mr Barnard, who moved the application on behalf of the defendant at the hearing of the

matter rested his client’s case on two legs.

THE FIRST LEG: THE ARGUMENT BASED ON THE ALLEGED SAME SET OF MATERIAL FACTS AS THE ORIGINAL COUNTER-CLAIM

[10] He firstly submitted with reference to the applicable authorities that:

’20.1 If a further additional item arising from the same set of facts that “begets” the right of

action” that was properly pursued by a litigant within the prescription period, is sought to be introduced

by an amendment after the expiry of the prescription period, there can be no objection to such

amendment;

20.2 The new items sought to be introduced by the defendant arise from the same material set of

facts that underpinned the pursuit of defendant’s original claim and/or right of action;

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20.3 The new items sought to be introduced furthermore amount to no more than an augmentation

of the original claim of the defendant, especially given the fact that such new items fall squarely within

the ambit of clause 2 of the second deed of cession dated 23 August 2012.’

[11] He submitted further that:

’24. In the present case the defendant’s original claim, that was properly instituted within the

three-year prescription period, was based, in terms of the provisions of clause 2.1 and 2.2 of the

August 2012 deed of cession, upon:

24.1 an enrichment action that “begot” itself from the set of material facts relating to steps

that were taken by Auto Tech to safeguard a motor vehicle allegedly belonging to the plaintiff;

24.2 an action based upon a tacit mandate to Auto Tech to manage the affairs of the alleged

owner of the vehicle that “begot” itself from the same set of material facts.

25. The augmentation of such claims sought to be introduced by the defendant’s amendment

begets itself from the same set of material facts set out above.

26. It is accordingly submitted that there should be no bar to the amendment.’

[12] During oral argument he again stressed that the court should look at the claims in

order to determine whether or not they were essentially based on the same set of material

facts. In his view it was wrong to look at causes of action, but that the question in issue

should rather be determined with reference to whether or not the additional claims would also

constitute claims based on the same set of material facts. In the present instance there was

only one set of material facts, namely that the vehicle in question was in an accident, that

Auto-Tech had restored the vehicle, in respect of which Auto-Tech had subsequently ceded

all its right, title and interest in the claim to defendant.

[13] It was relevant in this regard to note that the respondent had acknowledged that the

original conditional counter- claim had been validly instituted and that that part of the

applicant’s case had been properly pursued and that the further claims, that the applicant was

seeking to introduce, were begotten from the same set of material facts. The applicant was

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thus merely tapping into the same set of material facts for this purpose, which course of

action could not be objected to in regard to prescription.

THE SECOND LEG: AD PRESCRIPTION

[14] In support of the second leg of his argument, Mr Barnard emphasised that perspective

was important and that it had to be kept in mind that the bases on which the applicant sought

to introduce her further two claims were different as the first claim was based on enrichment

and the second was a contractual claim based on a tacit mandate. Different considerations

would thus apply as far the enrichment claim was concerned. Such claim arose at the time

that the one party was enriched and the other impoverished. The storage claim, on the other

hand, would arise on a day- to- day basis. Although it would seem that the claims had

prescribed, it would be inappropriate to adjudicate on the question of prescription in this

instance.

[15] On the papers as they stood, it was impossible to determine when the debts had

become due, as not all the facts were before the court and that it was thus possible that the

applicant would be able to raise a valid defence against the plea of prescription in future.

[16] He stressed that it would be dangerous to deal with the issue of prescription without

hearing evidence. He argued that prescription in any event could and would not become an

issue on the papers until the amendment had actually been introduced onto the pleadings and

had been responded to.

[17] He then enumerated a number of hypothetical defences on the bases of which a

special plea of prescription could be defeated, upon a proper adjudication of this issue, at a

separate hearing. He urged the court to adopt a similar approach in this regard as was

applicable to exceptions.

THE RESPONDENT’S CASE

[18] Mr Tötemeyer SC, on the other hand, commenced his argument on behalf of the

respondent, by reminding the court that it was trite that amendments, which sought to

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introduce claims, which had prescribed, should not be allowed. He submitted further with

reference to the Stockdale decision,1 which had been relied upon by Mr Barnard, that

amendments from which it was clear, ex facie their contents, that they had become

prescribed, should be refused, unless there would be circumstances which would call for

evidence. These aspects, so his submission went further, should however have been raised.

As this was not done in this instance, the amendment should be refused. More particularly,

he submitted that the applicant should have canvassed the issue of prescription in her

application. She however had not done so. A situation should not arise where the court would

have to speculate about hypothetical matters that could possibly be raised in evidence in

order to defeat any plea of prescription.

[19] He referred to his written heads of argument in which he had set out, precisely, why

the claims, which the applicant wished to introduce, had become prescribed: i.e. the tow-in

debt had arisen on the date in 2007 and the debt, which related to storage fees, was incurred

on a daily basis, during the period 17 January 2007 to 7 October 2010. Even if one would, for

the moment, accept that the delivery, of the applicant’s Notice to Amend, on 6 November

2013 would interrupt prescription, the to- be introduced claims, of the applicant, had also

become prescribed.2

[20] He reminded the court that there was an onus on the party that wished to rely on the

interruption of prescription3 and that, with reference to the claim for storage, it had to be kept

in mind, that this claim was made up of individual debts, which arose on a daily basis, and in

respect of which, it was alleged that the acceptance for such charges, was tacitly done. In this

regard there was however, no suggestion, made on the papers, by the applicant, of any

conduct, which related to an acknowledgement, made on a later date, to something which

had pertained, to an earlier date. i.e. no averments had been made in regard to any tacit

acknowledgement of liability for such storage costs at any stage after the liability in this regard

had arisen. There was accordingly no basis on which it could be argued that prescription, in

this instance, had been interrupted retrospectively. He again made the point that this should

have been alleged, which was however not done. He thus submitted that Mr Barnard, when

1 Stockdale v Stockdale 2004 (1) SA 68 (C) ([2003] 3 All SA 358)2 See : Mias de Klerk Boerdery (Edms) Bpk v Cole 1986 (2) SA 284 (N)3 He referred in this regard to Amler’s Precedent’s of Pleadings (ed ?) at p377 - ( p 332 in the 7th Ed) -, and Pentz v Govt of the RSA 1983 (3) SA 584 (A)

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raising all the hypothetical arguments, through which the applicant might defeat prescription,

had - as he put it – ‘taken a long shot’.

[21] As far as the relied upon wide terms of the underlying cession agreement were

concerned, on which the applicant’s original counter- claim was based, and in respect of

which Mr Barnard had submitted that its terms were wide enough to include also the

additional claims to be introduced, he submitted that the cession agreement did not affect the

issue of prescription at all, as the cessionary could not place the defendant in a better position

than the one, which the cedent had originally enjoyed.

[22] He reiterated the argument made in his written heads of argument that the additional

claims to be introduced were new claims which, upon analysis, revealed that they were

substantially different. He underscored this submission with reference to the analysis, of the

relevant pleadings, as contained in his heads of argument. He thus requested the court to

dismiss the application with costs, such costs to include the costs of one instructed- and one

instructing counsel.

REPLY

[23] In reply Mr Barnard re-emphasised that all the underlying facts originated from the

same set of facts and that the acid test was for the court to look at the material set of facts

that begot the claim, i.e. the vehicle was damaged, towed, stored and repaired.

[24] He pointed out that Mr Tötemeyer had not been able to find case law in support of his

argument that the applicant should have addressed the basis of any defence she had in

regard to the issue of prescription. He however, conceded that also he was not able to find

any case law on this point.

[25] With reference to Thekweni Properties judgment,4 he however pointed out that it had

formulated a general principle pertaining to amendments that they would not be refused if

there would not be any prejudice. He relied in this regard on what was stated in paragraph 9

4 Thekweni Properties (Pty) Ltd v Picardi Hotels Ltd (and Others as Third Parties) 2008 (2) SA 156 (D)

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of that judgment.5 He argued further that the court, in this instance, should allow the sought

amendment as any prejudice, occasioned to the respondent, could, or would, subsequently,

be cured by an appropriate order of costs.

[26] He urged the court to exercise its discretion in favour of the applicant so that justice

would be done.

[27] He especially argued that it was not the function of the affidavits, exchanged during an

application for leave to amend, to raise the issues, pertaining to prescription as this would

result in a mini-trial, at an inappropriate stage, which should be avoided.

RESOLUTION

[28] It should firstly be mentioned that counsel were, essentially, agreed on the applicable

principles which determine whether a new debt could be introduced to the existing pleadings,

by way of amendment. They were thus also agreed that, in appropriate circumstances, an

intended amendment, could also be refused, if such amendment would introduce a new

claim, which had become prescribed.6

[29] They agreed further that in order to determine this application, it would be necessary to

identify and analyse the ‘debt’, as Harms JA put it, in Drennan Maud & Partners v Pennington

TB7 where the learned judge had stated that, for purposes of deciding whether a debt has

5 [9] The court has a wide discretion to grant amendments. In one of the leading cases on the point Trans-Drakensberg Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D) the principle is set forth as follows (I quote the headnote):

The aim in allowing amendments to pleadings should be to do justice between the parties by deciding the real issues between them. The mistake or neglect of one of them in the process of placing the issues on record is not to stand in the way of this: his punishment is in his being mulcted in the wasted costs. The amendment will be refused only if to allow it would cause prejudice to the other party not remediable by an order for costs and, where appropriate, a postponement. It is only in this relation that the applicant for an amendment is required to show it is bona fide and to explain any delay there may have been in making the application, for he must show that his opponent will not suffer prejudice.

If a litigant has delayed in bringing forward his amendment, this in itself, there being no prejudice to his opponent not remediable in the manner indicated above, is no ground for refusing the amendment.

The authorities on when the Court should grant or refuse an amendment reviewed. ‘6 See for instance : Loubser v De Beers Marine Namibia (Pty) Ltd (I 341/2008) [2013] NAHCMD 382 (26 September 2013) reported on the SAFLII website at http://www.saflii.org/na/cases/NAHCMD/2013/382.html at paras [11] to [22] and the authorities referred to7 1998 (3) SA 200 (SCA) ([1998] 2 All SA 571)

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become prescribed, it would be necessary to identify ‘ … what the `claim' was in the broad

sense of the meaning of that word.’ 8

[30] In this exercise - and where the court is also called upon to decide whether a summons

or a counter- claim interrupts prescription - it will become necessary to compare all the

allegations and relief claimed in the summons with the allegations and relief claimed in the

amendment to see if the debt is substantially the same or not9 and that the claim should

“relate” to the ‘same set of material facts’ that ‘beget the plaintiff’s rights of action.’ 10

[31] In addition it is clear from the principles pertaining to amendments that the court will

allow an amendment where the main issue between the parties remains the same and that

the aim is also to achieve - through the amendment - that the true issues are formulated onto

the record, in order to do justice between the parties.11

[32] It appears to me that the technique to be employed for purposes of deciding whether

the claims in this instance relate to the same set of facts that beget the plaintiff’s right of

action, is firstly to embark on a comparison of the allegations and relief, claimed in the original

conditional counter-claim, with the averments and the relief, claimed in the intended

amendment.12

[33] In this regard it should be taken into account that the fact that there are differences in

the facta probanda necessary to prove the original cause of action and those necessary to

prove the amended claims do not invariably have to lead to the conclusion that the original

claim does not interrupt prescription. It also being relevant in this regard to determine

8 at page 212F to G9 See in this regard CGU Ins Ltd v Rumdel Cons (Pty) Ltd 2004 (2) SA 622 (SCA) ([2003] 2 All SA 597), Wavecrest Sea Enterprises (Pty) Ltd v Elliot 1995 (4) SA 596 (SE) etc.10 See Rustenburg Platinum Mines v Industrial Maintenance Painting Services 2009 [1] ALL SA 275 (SCA) at [11] to [14], CGU Ins Ltd v Rumdel Cons (Pty) Ltd 2004 (2) SA 622 (SCA) ([2003] 2 All SA 597) at 628B – C, Basfour 2482 (Pty) Ltd v Atlantic Meat Market (Pty) Ltd and Another 2011 (1) NR 164 (HC) at [6] to [8], etc11 See Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd 1967 (3) SA 632 (D), Thekweni Properties (Pty) Ltd v Picardi Hotels Ltd (and Others as Third Parties) 2008 (2) SA 156 (D), Loubser v De Beers Marine Namibia (Pty) Ltd (I 341/2008) [2013] NAHCMD 382 (26 September 2013) reported on the SAFLII website at http://www.saflii.org/na/cases/NAHCMD/2013/382.html12 See Wavecrest Sea Enterprises (Pty) Ltd v Elliot 1995 (4) SA 596 (SE) for instance

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whether the original right of action and relief claimed is the same or substantially the same as

in the amendment.

[34] Mr Tötemeyer conveniently set out the relevant analysis of the underlined pleadings in

his heads of argument in paragraph 8.1 to 13 which I incorporate herein by reference:

‘8.1 The defendant originally claimed an amount of N$262 380.96. This claim was based

on the cost of repairs to the vehicle in question as set out in annexure CH1 to the Counterclaim.

See: Index: Pleadings 13 to 17

8.2 It is contended by the defendant that the product that emerged after such repair was

substantially different than the vehicle that was left with Auto Tech (which only had a value of

N$30 000.00). It is further contended that badly damaged and discarded parts were replaced by

spare parts and components that belonged to Auto Tech and that the structural parts not discarded or

replaced had a negligible value compared to the extent of the repairs affected to the vehicle.

See: Pleadings 8 paragraphs 3.7 to 3.8

8.3 The aforementioned amount of N$262 980.96 is being claimed inter alia, on the basis of

alternative claims founded on enrichment and the allegations which underlie both those alternative

claims are that the repairs were “reasonable and useful” or related to “necessary and useful expenses”

and were generally done to advance the affairs of the plaintiff as the owner of the vehicle.

See: Pleadings 9 paragraphs 4 to 7

8.4 An alternative claim based on a “tacit mandate” is also advanced. This claim is also based

thereon that the expenses related to the repairs to the vehicle were “reasonable”.

See: Pleadings 10 to 11, paragraphs 8 to 9

9. It is submitted that the very nature of the aforementioned debt and right of action contained in

the original summons would require proof of the elements and the presentation of evidence as set out

hereinafter.

9.1 Evidence will have to be tendered about the condition the vehicle was in, when left with

Auto Tech.

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9.2 Evidence will have to be presented about each part replaced or repaired and whether

this related to a necessary or useful repair and expense.

9.3 Evidence will have to be tendered generally about the repairs affected and what the

nature was of the product (i.e. vehicle) that “emerged” thereafter.

9.4 In the aforesaid context, expert evidence will be required, not only to indicate that the

said repairs were necessary or useful, but also that the cost of same (also in relation to the

original value of the vehicle) were fairly and reasonably incurred, and that the quantum of same

is fair and reasonable.

9.5 Evidence will also be required of the value of the structural parts that were not

discarded or replaced in comparison to the value of the aforementioned repairs.

9.6 Evidence will further have to be tended that the aforementioned caused the plaintiff to

be unjustifiably enriched at the expense of the defendant (or at least at the expense of her

alleged predecessor in rights, a Mr. Arangies).

10. The claim sought to be introduced by way of the amendment for N$156 630.00 is made up of a

claim for storage incurred in respect of the vehicle for the period 17 January 2007 to 7 October 2010

at N$100.00 per day plus VAT.

Index: Notices and application page AA6 paragraph 3.12.3

11. The aforementioned claim for storage costs of N$156 630.00 – given the basis on which it is

sought to be claimed i.e. on the basis of alternative enrichment claims further alternatively a tacit

mandate – is underlied by the principles and would require the evidence as set out hereafter.

11.1 Evidence will be required that the vehicle was indeed placed in storage for the period

17 January 2007 to 7 October 2010.

11.2 That is was necessary or reasonable to store the vehicle as aforesaid. On this issue

expert evidence may well be required.

11.3 That it was necessary or reasonable to have stored the vehicle specifically at a cost of

N$100.00 per day plus VAT, in order to advance the plaintiff’s interest.

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11.4 That the necessary or reasonable expense to store the vehicle indeed amounted to

N$100.00 per day. Expert evidence on this issue will also be required.

11.5 That the plaintiff was enriched at the expense of the defendant (or at least at the

expense or her alleged predecessor in rights Mr. Arangies) to the extent of N$100.00 per day

plus VAT and for the aforementioned period.

12. It is submitted that it requires little analysis to conclude that the principles and evidence that

underlie the aforementioned two claims are vastly different from another. The same applies to the

additional claim of N$7 350.00 that arises from a towing-in cost of the vehicle from Oshakati to

Tsumeb during 2007 (as referred to above). The latter aspect will further be dealt with in argument.

13. In this vein it is submitted that it is with respect, quite artificial to argue (as the defendant does)

that the claims are substantially the same, simply because they were all subject to the same alleged

cession by Mr. Arangies to the defendant (see: Paragraph 20.3 of the defendant’s heads): The

basis of these claims and the facts underlying same, are substantially different.’

[35] In my view this comparison demonstrates clearly that the differences between the

original counter-claim and those claims, the applicant seeks to introduce, are so substantial,

as to translate the additional claims, into different, or substantially different rights of action,

even if one considers, what these claims are all about, in the broad sense of the word.

[36] It also clearly emerges that the facta probanda, necessary to prove the original

counter- claim, are vastly different from those that underpin the two new claims, which the

applicant seeks to introduce, by way of amendment. In my view the additional claims simply

do not relate, sufficiently, to the same set of material facts that beget the applicant’s original

right of action.

[37] Mr Barnard has urged the court to allow the applicant the opportunity to deliver her

amendment and not to determine the issue of prescription at the amendment stage. In this

regard he referred to a number of hypothetical examples/defences through which the

applicant might achieve to defeat a special plea of prescription, after a proper hearing in this

regard, where evidence would have been led and argument have been made.

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[38] Although I was initially inclined to follow this line of argument, particularly in view of the

applicable case law to this effect,13 I will now not do so, as I am of the view, that it was not

sufficient, for the applicant, in this instance, to merely point out a number of hypothetical

defences to the issue of prescription in this regard. The applicant was forewarned, through

the respondent’s Notice in terms of Rule 28 (4), as delivered on 15 November 2013, that it

faced an objection to the intended amendments on the ground that they would impermissibly

resuscitate claims which had become prescribed. The applicant was thus forewarned and

when she then elected to pursue her intended amendments, through the launching of this

application for leave to amend, she could quite easily have addressed this issue, in such

papers, by, at least stating some basis, on which it would be contended, that there would be a

defence to the plea of prescription.

[39] This she failed to do, as I have pointed out before. If she would however have done

so, this would have placed the basis of any such defence before the court and the court

would, on the basis of those allegations, have had a ground, on which to grant the

amendment, and to allow for the proper determination, of this issue, at a later stage, during an

appropriate hearing.

[40] No mini-trial, as contended for by Mr Barnard, would be required for the determination

of whether or not this, would be a triable issue, on the papers. The court surely would not

have determined that issue at the amendment stage, it clearly being more desirable to

determine all factual issues raised by any such plea and the reply thereto at subsequent

proceedings.

[41] The applicant’s further claims have clearly prescribed. It would thus also not serve any

purpose to mulct the parties in the further costs of any subsequent hearing at which the issue

of prescription would once again have to be determined, especially in circumstances where

the applicant has failed to show any basis, even on a prima facie basis, on which a special

plea of prescription could subsequently be defeated.

13 See for instance Grindrod (Pty) Ltd v Seaman 1998 (2) SA 347 (C), Stroud v Steel Engineering Co Ltd 1996 (4) SA 1139 (W) and a number of other cases.

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[42] It is against this background that I exercise my discretion against the applicant in this

instance.

[43] In any event I find, on the facts before me, that leave to amend the applicant’s

conditional counter claim should be refused, on the basis, that such amendment, sought to

introduce, two new claims, which have become prescribed.

[44] Counsel are generally agreed that cost should follow the result. It should however be

mentioned that the matter was originally argued on 7 July 2014, when the matter had to be

postponed to 10 July 2014, as the papers, underlying this interlocutory application, had not

been paginated, bound, and indexed.

[45] Mr Tötemeyer SC seeks an order that the wasted costs, occasioned by such

postponement, be awarded in favour of the respondent. Mr Barnard has resisted such order

arguing that it was always incumbent on the respondent, as plaintiff, to have done so.

[46] In my view the defendant, as the applicant, in these interlocutory proceedings, had the

primary duty to ensure that the papers pertaining to this interlocutory application and for the

hearing would be in order to facilitate smooth argument. This duty was breached and

accordingly I do not uphold Mr Barnard’s argument in this regard.

[47] In the result the following orders are made.

1. The 1st defendant’s application for leave to amend her conditional counter claim is

dismissed with costs, such costs to include the costs of one instructed- and one

instructing counsel.

2. In so far as it may be necessary, the applicant is also ordered to pay the wasted cost

occasioned by the postponement of the matter on 7 July 2014.

3. The matter is postponed to 22 July 2014 at 08h30 for a status hearing.

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H GEIER

Judge

APPEARANCES

FOR THE APPLICANT: T A Barnard

Instructed by Mueller Legal Practitioners,

Windhoek

FOR THE RESPONDENT: R Tötemeyer SC

Instructed by Behrens & Pfeiffer,

Windhoek