REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINHOEKRULING ON APPLICATION FOR AMENDMENT

CASE NO. (P) I 370/2012

In the matter between:

TRUSTCO GROUP INTERNATIONAL (PTY) LTD RESPONDENT / PLAINTIFF

and

ATLANTA CINEMA CAPITAL CC 1ST APPLICANT / 1ST DEFENDANTJOSEPH JOHANNES BECKER 2ND APPLICANT / 2ND DEFENDANTPETRUS LODEWIKUS LUDWIG 3RD APPLICANT / 3RD DEFENDANTDAMON IAN VAN DER MERWE 4TH APPLICANT/4TH DEFENDANT

CONSOLIDATED WITH CASE NO. (P) I 3268/2010

TRUSTCO CAPITAL (PTY) LTD RESPONDENT / PLAINTIFF

and

ATLANTACINEMA CC 1ST APPLICANT / 1ST DEFENDANT

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JOSEPH JOHANNES BECKER 2ND APPLICANT / 2ND DEFENDANTPETRUS LODEWIKUS LUDWIG 3RD APPLICANT / 3RD DEFENDANTDAMON IAN VAN DER MERWE 4TH APPLICANT / 4TH DEFENDANT

Neutral citation: Trustco Group International (Pty) Ltd v Atlanta Cinema Capital CC

& Others (I 370/2012) [2016] NAHCMD 297. (30 September 2016)

CORAM: MASUKU J

Heard: 25 July 2016

Delivered: 30 September 2016

FLYNOTE: RULES OF PRACTICE: Rule 59 (9) - Amendment of pleadings – Non

joinder – whether it constitutes a ground for the court to refuse an otherwise good

application for amendment.

SUMMARY: The defendants filed an application in which they sought to amend their

pleadings. The Plaintiff opposed the proposed amendments on the basis that they are

vexatious, prejudicial and amount to an abuse of the court processes. In that regard, it

was contended that the said amendment came after litis contestatio and more

importantly, more that fifteen years after the commencement of the litigation inter

partes. The Plaintiffs further argued that if the amendment sought is sanctioned, the

amended plea will be excipiable because the administrative decision sought to be

impugned stands as it has not been challenged at all, let alone successfully by the

defendants.

Held that - the court may, during the hearing, at any stage, before judgment, grant leave

to amend a pleading or document on such terms as to costs or otherwise as the court

considers suitable or proper.’

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Held further that - the court is granted a discretion which it has to exercise judiciously

and in full and close consideration of the attendant circumstances of the matter.

Held further that- in making the judgment call in that regard, it is for the court to consider

the interests of justice in the context of the entire matter and particularly to consider

whether there is any prejudice not curable by an appropriate order as to costs that

results to the other party as a result of granting the amendment proposed.

Held that - the party opposing the amendment must not only indicate that the proposed

amendment will be excipiable but further state in what manner to enable the court, if

convinced thereby, to deal with the application for amendment as though it was an

exception.

Held further that - judicial case management does not invest the court with power to

micro-manage issues of preparation and of evidence gathering, including the identity of

the witnesses to be called by the parties.

Held that - the issue of joinder, standing alone, does not, in terms of any authority cited,

nor one I am aware of, constitute sufficient basis for refusing an application for

amendment, which it must be stated, is a separate species from one of joinder.

In conclusion the court allowed the applicants the amendment sought and ordered them

to bear the costs necessitated by the amendment, including one of instructing and

instructed counsel.

ORDER

1. The applicants’ application to amend their plea in the manner and to the

extent set out in the notice of amendment dated 24 February 2016 is hereby

granted.

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2. The applicants are ordered to pay the costs necessitated by the amendment

on the normal scale, including the costs of one instructing and instructed

Counsel.

3. The amended plea is to be filed within seven (7) days from the date of this

order.

4. The respondent is ordered to file its consequential amended replication, if so

advised, within ten (10) days from the filing of the amended plea.

5. The matter is postponed to 2 November 2016 for case management.

6. The parties are ordered to file a joint case management report three (3) days

before the case management date mentioned in para 5 above.

RULING

MASUKU J:,

Introduction

[1] The above-named parties are locked in intractable disputes raised in two causes

of action that were eventually consolidated in terms of this court’s rules.1 Under Case

No. (P) 3258/2010, the plaintiff claims payment of N$ 13, 638, 852. 52, in respect of an

alleged loan agreement and with which the defendants failed to comply. In Case No. (P)

I 370/2012, the plaintiff claims delivery of 12 quad bikes, alternatively, the payment of

N$ 288 000. 00, interest thereon and costs of suit. It is not necessary, for present

purposes, to indulge in detail in the averrals of the dispute, save to a very limited extent

as dictated by the circumstances.

[2] Presently serving before court for determination is an opposed application for

amendment of the defendants’ plea. The defendants allege that the basis for the

opposition is unreasonable and meritless and as such, the court should exercise its

1 Rule 41.

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discretion and grant the amendments sought. I shall proceed to consider the

amendment sought and the grounds of opposition and by applying the relevant

principles, I shall come to a conclusion as to where the interests of justice lie in granting

or refusing the application. I shall, for ease of reference, refer to the defendants in this

application as the ‘applicant’ and to the plaintiff as the ‘respondent’.

The amendment

[3] The nature and the extent of the amendment sought is captured in a notice filed

by the applicant, dated 24 February 2016. For purposes of completeness, I find it

appropriate to cite the amendments sought verbatim. They are the following:

‘6A. 1 In Case No. P (I) 525/2011, the Municipal Council of the Municipality of

Windhoek (“the Municipality”) issued and served summons against Trustco Group Holdings

(Pty) Ltd as first defendant, against Trustco Group International Ltd as second defendant and

Atlanta Cinema CC as third defendant. The first and second defendants are one and the same

entity.

6A. 2 The first, third and fourth defendants in their plea refer to Trustoco Group Holdings (Pty)

Ltd, Trustco Group International Ltd and Trustco Capital (Pty) Ltd collectively as “Trustco Group

of Companies”. They also separately refer to Trustco Capital (Pty) Ltd as “TC”. Trustco Group

Holdings (Pty) Ltd changed its name to Trustco Group International Limited and the latter is

currently the holding company the plaintiff herein as well as of Turstco Capital (Pty) Ltd.

6A. 3 Trustco International Limited elected to defend the action instituted against it by the

Municipality under case no P (I) 52/2011. The first defendant (Atlanta Cinema CC), despite

having been duly served with the summons, elected not to defend the action under case no. P

(I) 525/2011.

6A. 4 The action instituted by the Municipality against Trustco Group Holdings (Pty) Ltd

(currently Trustco Group International Limited – “TGI”) was premised on a lease agreement

entered into and between the Municipality and “TGI”. It is annexure “D2” to the first, third and

fourth defendants’ further particulars to their plea, dated 25 February 2014. For ease of

reference it is attached hereto, again marked annexure “D2”.

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6A. 5 In the aforesaid action under case no P (I) 525/2011 the Municipality asked for the

eviction of the TGI, based on the allegation that clauses 11 and 4 of the written lease agreement

between the Municipality and TGI prohibited the plaintiff herein from entering into the sale

agreement with the first defendant. The sale agreement is annexure “A” to the plaintiff’s

particulars of claim, and for ease of reference is again attached hereto as annexure “A”. The

Municipality’s cause of action was thus based on breach of the lease agreement by TGI.

6A. 6 On 5 March 2014 this Court granted absolution from the instance in the matter between

the Municipality and TGI in case number P (I) 525/2011 – copy of the order of Court is attached

hereto for ease of reference as annexure “B”. The Court Order was thus granted after a date

that litis contestatio was reached in this matter and the plaintiff was in no position to raise its

amended earlier.

6A. 7 The same proposition of law, i.e. the interpretation and legal effects of the lease

agreement between the Municipality and TGI between parties to earlier litigation, has now

arisen in this matter. This proposition of law has been raised by the first, third and fourth

defendants in their plea. It has also been raised by the second defendant in his separate plea

filed of record. This proposition of law has been established by this Court in the earlier litigation.

It is conclusive between the parties and thus the issue of estoppel exists.

6A. 8 The second, third and fourth defendants are sued herein jointly and severally with the

first defendant. The plaintiff’s assertion is that the legal consequences of the proposition raised

in this matter by the defendants as an essential element of their defense, has already been

decided by Court of competent jurisdiction, and also exists as between the plaintiff and the first,

second, third and fourth defendants.

6A. 9 In the premises, the issue of estoppel exists between the plaintiff and all four

defendants. Consequentially, there is also no substance in the first defendant’s counterclaim

filed of record.’

Bases for opposition (bird’s eye view)

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[4] In their papers in opposition, the respondent states the following as the main

bases for opposing the proposed amendments; firstly that the amendments proposed

are vexatious, prejudicial and amount to an abuse of the court processes. In this regard,

it is contended that the said amendment come after litis contestatio and more

importantly, more that fifteen years after the commencement of the litigation inter

partes. Secondly, it is contended that in any event, even if the court was to sanction the

amendments sought, the amended plea would be rendered excipiable for reasons that

will be traversed as the ruling unfolds. In regard to the latter argument, it was

contended, relying on what has become known as the Oudekraal principle, that the

proposed amendment is ineffectual without the setting aside of the illegality perceived

by way of review.

[5] Lastly, the respondent took the position that the court should mulct the applicants

in costs on the punitive scale for the reason that they, in seeking the amendment, acted

frivolously and in the process, have abused the court’s processes by persisting in the

amendment. In this regard, cost for one instructing and two instructed counsel was

applied for.

Principles governing applications for amendment

[6] I am of the view that to start the ball rolling, it is important, at this juncture, to

generally consider the court’s approach and general policy to issues of amendment of

pleadings. The proper starting point, in this regard, is the locus classicus judgment of

the Full Bench of this court in I A Bell Equipment Company (Namibia) (Pty) Ltd v

Roadstone Quarries CC.2 In that case, the court set out the main principles governing

amendments. For purposes of this case, I have distilled those that are in my view

relevant to the instant matter. They are the following:

(a) amendments may be sought at any stage of the proceedings;

(b) in granting or refusing amendments, the court exercises a discretion and which

discretion must be exercised judicially;

2 Case No. I 602/2013 and I 4084/2010.

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(c) a litigant seeking an amendment craves the indulgence of the court and must therefore

proffer some explanation for the amendment sought;

(d) the explanation required will be determined by the nature of the amendment sought. The

more substantial the amendment, the more compelling the case for an explanation under

oath.

(e) if a party proffers an explanation that is not reasonably satisfactory or one lacking in

bona fides, the court may disallow the amendment, especially where the amendment is

opposed and has the potential to compromise a firm date of trial;

(f) an amendment that is not opposed or one that is minor will invariably be granted;

(g) a court will not compel a party to stick to a version or law that it says no longer

represents its stance and this is because litigants must be allowed in the adversarial

system, to ventilate what they believe to be the real issues between or among them;

(h) if a party contemplates a late amendment, it must, after informing the opponent in writing

that the proposed amendment is likely to compromise trial dates, seek directions from

the managing judge in terms of rule 32 (4) to (10), for the court to allow the bringing of

an amendment.’

[7] In dealing with some of the requirements stated above, the applicants for

amendment, state on oath that the reason that they seek an amendment to the plea is

because the lease agreement purportedly entered into and in question in these

proceedings, is void, illegal and unenforceable and further ultra vires in terms of the

Local Authorities Act 3 (the ‘Act’), for reasons that will be adverted to below. It is their

further contention on oath that the fact that there may have been a delay in bringing the

application for amendment does not in and of itself deprive them of the relief they seek.

In this regard, it is contended that the respondent has failed to point out any prejudice

suffered thereby and this, it is further alleged, is because of the reason that no prejudice

that the respondent has or can suffer if the application is granted.

[8] I now intend to deal with the bases of opposition and to determine, with reference

to the authorities cited and referred to the court, whether the application ought to be

granted at all or in part. I deal with the different heads or grounds of opposition below.

3 Act No 23 of 1992.

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Non-indexing of papers

[9] This issue was raised in the heads of argument as a preliminary point of law for

determination. It was argued that in terms of rule 131 (6), which is couched in

peremptory terms, the applicants, who moved the application in question, ought to have

bound the papers filed of record but they failed or neglected to do so. This point was not

persisted with in argument and therefor need not be addressed in this ruling, save to

point out to parties that the rules are made to be punctiliously and religiously complied

with. This is more so in instances like this when the court and the other party must deal

with the issues from a common ground regarding the relevant papers to be referred to.

This requirement is not idle or inconsequential. This is particularly the case where a

morass of paper, including pleadings has been filed previously to the hearing of the

interlocutory. It is desirable and fair that only those portions of the papers that are

relevant are bound.

Bases of opposition

Amendments are vexatious, prejudicial and amount to an abuse of court processes

[10] In this leg, the respondent claims that the court should not allow the amendments

sought for the reason that the amendments constitute wholly new defences and which

come very late in the day and after litis contestatio and critically, after a period of fifteen

years from the date of the commencement of the proceedings. It is also alleged that in

seeking the proposed amendments, there is no allegation that some Municipality of

Windhoek employees were consulted in order to confirm some of the alleged

unsubstantiated allegations sought to be relied upon in the amendment.

[11] In support of the contention of the lateness of the amendment and the

inadvisability of granting an amendment at this stage and after such a long time, the

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respondent placed reliance on a number of cases, including Scania Finance S A (Pty)

Ltd4 where this court expressed itself on the question in the following terms:5

‘For the courts have also stressed that a litigant who seeks to add new grounds for relief

at the eleventh hour does not claim an amendment as of right but rather seeks an indulgence. . .

As I indicate below, an applicant for an amendment faces an even more stringent hurdle in

seeking that indulgence at a late stage of the proceedings after the advent of judicial case

management. . .’

[12] I am of the considered view that the above quotation must be viewed

contextually, having regard to the attendant facts of the case. The opening paragraph of

the Scania judgment shows that the application for amendment was made after the

plaintiff had closed its case and after the defendant’s main witness had testified. It is in

that context that the court used the word ‘late’ in relation to the amendment. The use of

the word was not in in relation to the length of time it took the applicant to move the

application in relation to the commencement of proceedings but rather it was in relation

to the stage which the proceedings had reached at the time that the application was

moved.

[13] It would appear to me that similar consideration applied in the Nedbank Namibia

Ltd v Tile and Sanitary Ware CC and Others case.6 I say so for the reason that in that

case, unlike in the present one, a date of trial had already been allocated when the

application to amend was moved and the amendment would certainly have caused the

abortion of the trial date. As such, it is clear that the application for amendment was also

moved ‘late in the day’ in the context of the date having been appointed, a far cry from

the instant case.

[14] Rule 59 (9) states the following:

4 2014 (2) NR 489.5 Ibid at p.493, para [15].6 2015 (1) NR 240.

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‘The court may during the hearing at any stage before judgment, grant leave to amend a

pleading or document on such terms as to costs or otherwise as the court considers suitable or

proper.’

In this regard, no time limits are placed by the rules regarding when an application for

amendment ought to be brought. What is clear, is that the court is granted a discretion

which it has to exercise judiciously and in full and close consideration of the attendant

circumstances of the matter. What should not sink into oblivion, in making that judgment

call, is for the court to consider the interests of justice in the context of the entire matter

and particularly to consider whether there is any prejudice not curable by an appropriate

order as to costs that results to the other party as a result of granting the amendment

proposed. In the absence of any meaningful prejudice, not compensable with an

appropriate order for costs, the court should ordinarily grant the amendment applied for.

[15] In this regard, the learned author Erasmus,7 states the following:

‘Delay in bringing forward an amendment is in itself, in the absence of prejudice, no

ground for refusing an amendment. In the absence of prejudice to the other [party, leave to

amend may be granted “at any stage, however careless the mistake or omission may have

been, and however late may be the application for amendment.”’

In this regard, I must point out that it is not clear on what basis the respondent claims

that a period of fifteen years has elapsed. I say so considering that the cases which

have been consolidated were instituted in 2010 and 2012, respectively. Even if it can be

shown that the application for leave to amend has been brought very long after the

commencement of proceedings, that, on its own, should not, in my considered view,

result in a dismissal of the application. Crucially, there is no prejudice that the

respondent has pointed out at all, and particularly that which cannot be compensated by

an appropriate order as to costs in this matter.

7 Superior Court Practice, R S 1, 2016, D1-33.

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[16] In this regard, although the respondent additionally claims that the applicants

seek to raise new defences, there is no indication that the respondent will not be able to

meet those defences in its replication. No trial date has been fixed yet and there has

not, at this stage been a pretrial order issued in terms of the rules of court. All that is

important in this regard, is for the parties, in the adversarial system to ventilate ‘what

they believe are the real issues between them’. There is no loss or prejudice pleaded,

the longtime alleged, notwithstanding, that can conceivably result in the plaintiff being

prejudiced beyond compensation in costs. This court must be seen in such matters to

do justice between the parties. The court should not be seen to punish the parties or

their lawyers for inaccurate, or incomplete pleading of a case by refusing an

amendment. I accordingly come to the view that this basis of opposition does not pass

muster.

Amendment proposes will render the plea excipiable

[17] In this leg, the respondent claims that the applicants should be non-suited in their

application for an amendment for the reason that the amendment, if granted, will be

excipiable in any event. The proposed amendment challenged in this regard, relates to

the lease agreement entered into between the respondent and the Municipality of

Windhoek being alleged to be invalid and therefore unenforceable and also ultra vires in

terms of the provisions applicable to the Local Authorities Act, as read with the

regulations published under Government Gazette 2486 of 15 February 2001. In this

regard, it is alleged in the proposed amendment that the property that was sought to be

leased comprised townlands and therefore mandatorily required ministerial consent,

which was not obtained.

[18] In this regard, it is contended that if the amendment is sanctioned, the amended

plea will be excipiable because the administrative decision sought to be impugned

stands as it has not been challenged at all, let alone successfully. In this regard, it is

contended that the applicants have not brought any proceedings aimed at setting aside

the said administrative decision. This argument is based on what is referred to as the

Oudekraal principle and to which reference will be made in the course of the ruling. The

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question is whether there is any merit in this contention. Is the intended amendment in

this regard excipiable as contended by the respondent?

[19] The first issue to be pointed out is that the respondent has only made an

allegation that if the amendment proposed were to be granted, it would render the

amended plea excipiable. In this regard the nature and extent of the alleged exception

is not disclosed, save the respondent’s ipse dixit in that regard. Where it is alleged that

an amendment may result in excipiable material being allowed, the Supreme Court has

spoken emphatically on the approach of a court to applications for leave to amend in

cases where the proposed amendment will be rendered excipiable.8 At para [39] of the

D B Thermal judgment, the Supreme Court said the following:

‘A further principle governing amendments is that a pleading may not be amended if the

result would be excipiable on the basis that the amended pleading would not disclose a cause

of action. Again, a court may permit an amendment, even if it would render the pleading

excipiable if exceptional circumstances exist. In order for a pleading to disclose a cause of

action, it must set out every material fact, which would be necessary for the plaintiff to provide

support for his or her right to the order sought.’

[20] Implicit in this excerpt, is that the excipient must not only indicate that the

proposed amendment will be excipiable but further state in what manner. I say this for

the reason that an excipiable pleading may be so excipiable on two different bases.

First it may be excipiable because it does not contain averments that disclose a cause

of action, or second, it may be that it is vague and embarrassing.9 This must, in my view

be made plain once an allegation that the pleading is excipiable is made.

[21] Also implicit in this is that the grounds upon which the allegations of excipiability

are raised must be disclosed to enable the applicant for amendment, and the court by

extension, when called upon to decide the dispute, know exactly the nature and

grounds upon which the allegation is premised. With due respect, it is not clear in the

8 D B Thermal (Pty) Ltd v Quality Products Case No. 33/2010. 9 Alwin Petrus Van Straten N.O v Namibia Financial Institutions Supervisory Authority & Another 19/2014. delivered on 8 June 2016.

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instant case on what basis or bases the claim is made that the intended amendment is

excipiable and in what manner this is so.

[22] The importance of spelling these issues out is made all the more crucial because

of the approach that the court is supposed to take once the intended amendment is

possibly excipiable. In this regard, the Court in the Offshore Development Company v

Deloitte & Touche10 case proceeded to say that the amendment must be dealt with as

though it were an exception. For this to be possible for the court to do, it stands to

reason, in my view that the alleged excipiable nature of the proceedings must be fully

disclosed, together with the grounds for the said allegation. In this case, it appears that

the respondent merely contented itself in making the bare and unsubstantiated

allegation, without the necessary particulars.

[23] This then leads me to deal with the Oudekraal principle.11 The principle

enunciated in this case is to be found in the headnote and states the following:

‘Until the Administrator’s approval and thus the consequence of the approval was set

aside by a court in proceedings for the judicial review it existed in fact and had legal

consequences that could not simply be overlooked. The proper functioning of a modern State

would be considerably compromised if all administrative acts could be given effect to or ignored

depending on the view the subject took of the validity of the act in question. No doubt it was for

this reason that our law had always recognized that even an unlawful administrative act was

capable of producing legally valid consequences for so long as the unlawful act was not set

aside.’

[24] As I understand the respondent’s argument in this regard, it is contended that the

applicants cannot plead that the decision of the Municipality was unlawful because they

have not at any stage challenged its validity in independent review proceedings and that

the said decision must be considered to stand until properly set aside by a court of law.

In my view, I find nothing untoward with the applicant raising the contended illegality of

10 (I 1111/2006) NAHCMD 191 (30 June 2016) at p 10-11 [para 21 –[22].11 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222.

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the contracts, which in any event, is a legal issue and which the court would, at the

hearing be in a proper position to deal with and decide on the evidence.

[25] Furthermore, I do not perceive that the respondent is suffering or may suffer any

prejudice in this regard as it has an opportunity in replication, to deal squarely with this

legal issue. At the trial, all the relevant evidence may be led and the court will have the

wherewithal to decide the issue in a final fashion, having had the benefit of hearing full

and comprehensive argument in addition to the evidence led in support thereof.

[26] I do not understand the applicants to intimate that they will henceforth act and

conduct themselves as if the said contracts were invalid henceforth based on their

parochial views and persuasions. They are waiting for this court’s imprimatur in this

regard which may be given at the end of the trial and the illegality of the contracts, if so

found by the court will take effect thenceforth. Nothing is subversive of the rule of law in

such an attitude, which makes an argument of illegality that awaits the court’s

determination, without any corresponding actions that undermines or preempts the

court’s finding on that very issue.

[27] There is no need, in my view, in the circumstances, where the issue of illegality

of the contracts pertinently arises, for the applicants to first initiate review proceedings

at great expense if I may add, when a finding at the trial may reach the same conclusion

and have the same consequences, but at greater cost and with the additional loss of

time and energy. That may amount to an unnecessary proliferation of proceedings and

at additional cost an inconvenience to the parties, including the respondent itself. For

the above reasons, I am of the considered view that the reliance on the Oudekraal

principle in the instant case, is misplaced and should not avail the respondent.

No supporting evidence

[28] Another basis for opposing the proposed amendment is that once the intimation

to effect the amendment was made by the applicants, the respondent wrote a letter to

the applicants’ legal practitioners, dated 1 March 2016 requiring the applicants to

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provide the respondent with the names of the Municipality and Ministry officials they

consulted before taking the decision to amend the plea. It would appear that the

applicants, in response to the enquiry, indicated that the said consultations may take

place in preparation for trial.

[29] The gravamen of the complaint, as one reads, appears to be that because the

applicants’ legal practitioners may not have consulted with officials from the Municipality

and the relevant Ministry before filing the proposed amendment, the proposed

amendment amounts to harassment of the respondent in line with the case of D B

Thermal (supra), where the court reasoned as follows:

‘. . . cannot be allowed to harass his opponent by an amendment which has no

foundation. He cannot place on the record an issue for which he has no supporting evidence,

where evidence is required.’

[30] The applicants take a two-pronged approach to this ground for opposition. In the

first place, they argue that the respondent did not take the court fully into its confidence

in dealing with the issue of the stance of the Municipality in relation to the lease

agreements in question. In particular, reference is made to Case No. 209/2014 in which

the Windhoek Municipality’s Chief Executive Officer deposed to an affidavit and stated

that the lease agreement between the respondent and the said Municipality concerned

‘townlands’ and that the Ministerial approval required in terms of s. 30 (1) of the Act,

was never obtained. An invitation to the applicant to demonstrate by admissible

evidence that Ministerial consent was in fact obtained, was unsatisfactorily declined.12

[31] I am of the considered view that this provides a full answer to the respondent’s

criticism regarding the amendment being proposed having to be regarded as a weapon

of oppression and harassment of the respondent. I cannot, before the matter is

ventilated in court, place an embargo on the proper ventilation of the relevant issues by

making a call on evidence that may later be led. The applicants should, in my view be

allowed to ventilate the case they canvass and if at the end of the day it is proved that

12 See annexure AC5 to the founding papers in the application for amendment.

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the present application was nothing but a missive of oppression, the court may be

moved at that time, to make an appropriate order. To do so by refusing them to leave

amend when that may be able to bring the necessary evidence, foreshadowed in the

affidavits quoted above, would, in my view, be impermissible, unnecessary and

obstructive interference by the court.

[32] As to when and how the applicants choose to consult the witnesses they

perceive they will need in this regard, must be left to them. This court should not be

seen to be a choir master of an opera, conducting the orchestra of trial proceedings to

the minute detail of deciding which witness to consult, where and when. Judicial case

management does not invest the court with power to micro-manage issues of

preparation and of evidence gathering, including the identity of the witnesses to be

called by the parties. It is safe for the court stay clear from running the case on behalf of

the parties in this respect. I am accordingly of the considered opinion that the

respondent’s argument in this regard should fail and it is devoid of merit.

Non-joinder

[33] I now deal with the issue of non-joinder as the last basis for opposing the

amendment. In this connection, the respondent claims that some necessary parties,

who have a direct and substantial interest in this matter, namely the relevant line

Minister and the Municipality of Windhoek, have not been joined in this action. I am not

able, at this juncture, in the absence of argument, to hold that the said parties do have a

direct and substantial interest as alleged.

[34] The main question to consider though, is whether the failure to join a necessary

party constitutes sufficient ground for the court to refuse an otherwise good application

for amendment. I have not been referred to authority supporting that legal proposition.

The applicants however state that they may, at a later stage, join the said parties to the

consolidate proceedings. Returning the fire, the respondent alleges that the applicants

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appear to take a simplistic approach to the issue by assuming that the application for

joinder will be granted merely for the asking, which may not necessarily be the case. It

is further pointed out that the applicant’s approach appears not to be in line with the

essential aspects of judicial case management, regard had to the piecemeal fashion

with which the issues are being approached.

[35] I am of the view, even if the respondent may be correct in law that the said

parties are indeed necessary parties and not ones to be joined merely for purposes of

convenience, that the issue of joinder, standing alone, does not, in terms of any

authority cited, nor one I am aware of, constitute sufficient basis for refusing an

application for amendment, which it must be stated, is a separate species from one of

joinder. It may well be that for purposes of limiting costs and the issues of convenience,

it may have been prudent and advisable, in order to limit costs, to move the application

for joinder together with the current proceedings. In this regard, the overriding principles

of judicial case management would be served thereby.

[36] That does not, on its own serve or should serve to non-suit the applicants at this

stage. The issue of joinder, as intimated, is one that the applicants may wish to consider

in the context of the entire case and it is not a crime for them, at this juncture, to deal

with what they consider, in the wider context of the entire case, to be the compelling and

burning issues so to speak. Should the applicants be unsuccessful in the quest to have

the said parties joined to the proceedings, and due to the respondent’s successful

opposition, then the respondent has the balming effect of a favourable costs order in its

favour. The applicant should not be inveigled, when it is still contending with the

momentous issue of the amendment at this juncture, to divide its attention to an issue

that concerns the respondent and which may later turn to be a non-issue.

[37] As indicated above, if the respondent is correct in its view regarding the

necessity of joining the said parties, then the respondent can and has a remedy, namely

to oppose the said application should it be made. It will prove to be made in ill-advised

or misguided circumstances, the respondent will, as stated above, have an order for

costs as a balm for its trouble and harassment.

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[38] In the circumstances, I am of the considered view that the application for

amendment of the applicants’ plea ought to be granted, as I hereby do. I do not

consider that there is any compelling ground raised by the respondent which passes

muster to justify a refusal of the amendments sought in the circumstances.

Costs

[39] The normal rule that applies is that a party which moves an application for an

amendment craves an indulgence from the court. The upshot of this position is that the

ordinary order that follows is for the applicant for leave to amendment should pay the

costs. The exception may be in circumstances where the court is of the view that the

opposition was nothing more than an abuse of the court’s processes and that the

opposition to the application was obstructive and unreasonable in all the circumstances

of the case.

[410 I do not consider that the respondent, although it has been unsuccessful in its

opposition, had an entirely meritless case which bordered on the unreasonable and

excruciating abuse of the court’s processes and thus unduly obstructive in its intent and

result. It is clear that the issues it has raised, although unsuccessful, required the court

to consider them closely.

Order

[41] In the premises, I find that the following order is appropriate in the circumstances:

1. The applicants’ application to amend their plea in the manner and to the

extent set out in the notice of amendment dated 24 February 2016 is hereby

granted.

2. The applicants are ordered to pay the costs necessitated by the amendment

on the normal scale, including the costs of one instructing and instructed

Counsel.

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3. The amended plea is to be filed within seven (7) days from the date of this

order.

4. The respondent is ordered to file its consequential amended replication, if so

advised, within ten (10) days from the filing of the amended plea.

5. The matter is postponed to 2 November 2016 for case management.

6. The parties are ordered to file a joint case management report three (3) days

before the case management date mentioned in para 5 above.

___________

T.S. Masuku

Judge

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APPEARANCES:

RESPONDENT/PLAINTIFF: R. Heathcote SC (with him H Schneider

Instructed by Van Der Merwe-Greeff Andima

Inc.

APPLICANTS/DEFENDANTS: R. Totemeyer SC (with him D Obbes)

Instructed by Fisher, Quarmby & Pfeifer)