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C OF A
(CIV) 34/95

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

PITSO
PHAKISI MAKHOZA APPELLANT

AND

LESOTHO
LIQUOR DISTRIBUTORS RESPONDENT

HELD AT:
MASERU

CORAM:

BROWDE JA

KOTZE JA

LEON JA

JUDGMENT

BROWDE JA

On the
11th October 1990 the respondent, a liquor distributor, issued
summons against the appellant hotelier claiming the price
of goods
sold and delivered during the period 21 November 1986 to 30 June
1989. It is a sad commentary on the way in which the
suit has been
conducted that the matter has not yet come to trial and this appeal
is concerned with technicalities relating to
amendments, particulars
for trial, discovery and awards of costs in the court a quo. A
resume' of the proceedings thus far is as
follows:-

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(i) In the declaration dated 11 September 1990 the respondent set
out details of a series of invoices showing the date, the invoice

amount, payments made in respect of each invoice, credits for
"empties" and the balance due on each invoice.

(ii) After being served with a notice of Bar on 6 February 1991 the
respondent's plea was served on 11 February. The defence raised
in
the plea was not much more than a bare denial. The best the pleader
could apparently do was to deny that the annexure setting
out the
invoices "correctly reflects' the payments", that "
(respondent) failed to deliver all the liquor ordered"
and "No
liquor which was delivered remains unpaid".

(iii) A request for further particular to the plea followed asking,
inter alia, for details of the liquor which the appellant
alleged was
not delivered. This request was served on 25 February 1991.

(iv) Having received no response to the request the respondent, on
15 April, served a notice in terms of 'Rule 30(5) of the Rules
of
Court, that it intended making an application to court to compel the
appellant to furnish the particulars sought. On 6 May 1991
some
particulars were furnished but were so vague and inadequate that
ultimately, and on 2 December 1991 the application in terms
of Rules
30(5) culminated in an order of Court compelling the appellant to
furnish the particulars sought.

(v) On 14 February 1992 the appellant furnished particulars
including details of the invoices which he admitted and also the
debits which he denied. At that stage he was not able to "identify
the allegedly incorrect payments" and stated that when
he could
identify them he would make application to amend his plea.

I pause to say that one would have thought that the pleadings were
then sufficiently detailed to enable the parties to air their

differences in Court. That was in February 1992 and it is quite
appalling that technicalities could be exploited for the next four

years thus avoiding the trial court's pronouncement on the merits to
this 3 day.

(vi) On 31 March 1992 by order of Kheola J. {as he then was) the
appellant's failure to file supplementary further particulars
was
condoned and the appellant was ordered to pay the costs.

(vii) The trial was set down to be heard on 23 August and ten days
thereafter. However for reasons which do not appear from the
record
the matter was removed from the roll and set down again a number of
times until, on 10 February 1995, it was set down for
trial over the
period 1 to 19 May 1995.

There can of course be no doubt that the appellant by that time had
had more than sufficient time in which to do all the research
he
needed to say exactly what he admitted and what he denied receiving
and paying for during the period covered by the claim which
was, as
referred to above, 1986 to 1989.

(viii) A pre-trial conference was held on 21 April 1995 at which the
respondent asked the appellant to admit that he was a hotelier

trading as Hotel Malunga as pleaded in the declaration. The appellant
said he "would revert". It was agreed between the
parties
that the respondent would compile a bundle of the documents it
intended using at the trial and would serve the bundle on
the
appellant's attorneys while the defendant undertook to do the same
and to effect service of his bundle on the respondent by
29 April
1995. It was also recorded that the matter would proceed on 1 May and
that should the appellant decide to ask for an adjournment
he would
immediately notify the respondent's attorneys thereof. No reason was
given nor, it seems, was there any suggestion at
that stage as to
what could arise which might cause the appellant to ask for "an
adjournment."

(ix) The matter did not proceed on 1 and 2 May 1995 because those
days were public holidays and on 3 May 1995 the appellant did
indeed
seek an adjournment to obtain the services of counsel and to
accommodate the appellant, it was agreed to commence the trial
on 9
May 1995.

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(x) On Friday 5 May 1995 the first of two notices of amendment was
served on the respondent and on Tuesday 9 May (the date on
which the
hearing was to start) the second notice of amendment was served on
the respondent .

It is quite inexplicable why the appellant should have come to court
without counsel and then, after having had three years in
which to
consider the case, should have, at the doors of the court so to
speak, then have sought to amend his plea on two separate
occasions.

(xi) The respondent, having been given 158 cheques which the
appellant now alleged had not been taken into account by the
respondent,
required time to consider them and asked for an
adjournment for two days i.e. until 11 May. On the 9th however, the
respondent
filed a formal replication joining issue on the plea with
the amendments sought. In the judgment of Mofolo J, against which
this
appeal has been brought, it is recorded that when the amendments
were to be considered by the respondent, counsel stated that
respondent
reserved its right to oppose them. Despite this
reservation of rights the appellant now contends that by filing the
replication
the respondent waived its right to oppose the amendments.
I shall return to the submission made by Mr. Wessels on behalf of the

appellant later in this judgment.

(xii) The period between 9 May and 11 May proved to be insufficient
to enable the respondent to investigate the new allegations
properly,
and the matter was postponed by consent to 15 August 1995. On 26 June
1995 the respondent gave notice of its intention
to oppose the
amendments.

One of the grounds for opposition was that as the amendments related
to transactions "in excess of a period of 6 years ago"
the
respondent would be prejudiced if the amendments were allowed since
the respondent was not obliged to keep records for that
long a 1 It
seems to me, that although it is not expressly stated, it was clearly
implied that the respondent had destroyed the
documents which were
necessary to contest the new ground sought to be covered by the
appellant.

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(xiii) On 17 July respondent filed its discovery-affidavit with
details of the documents which appear to be relevant to the claim

which, as pointed out by Mr Woker for the respondent, consisted of a
series of sales each with its individual price, each invoiced

separately and in respect of each of which delivery was alleged to
have been made.

Although Mr Wessels submitted before us that the affidavit of
discovery did not strictly conform to Form 0 in the schedule to the

Rules of Court the only response which seems to have emanated from
the appellant at the time was, on 1 August 1995, to call for

production of the documents referred to in the affidavit.

(xiv) The matter came before Mr Justice Mofolo on 15 August 1995 and
it was then that the questions arose which led to the findings
of the
court a quo and the present appeal against those findings with
particular reference to the refusal of the learned judge
to allow the
amendments to the plea and the findings that the filing of the
replication in the circumstances did not amount to
a waiver by the
respondent of its right to oppose the amendments.

The
refusal to allow the amendments

In G.M.F.
Kontrakteurs (Edms) Bpk vs Pretoria City Council 1978 (2) SA 219

Franklin
J. considered how a court should exercise its discretion in deciding
upon an application to amend a plea. He first approved
of the
judgment in Zarug v. Parvathie N.O 1962 (3) SA 872 in which it was
stated by the court that

"No matter how negligent or careless the mistake or omission may
have been and no matter how late the application for amendment
may be
made, the application can be granted if the necessity for the
amendment has arisen through some reasonable cause, even though
it be
only a bona fide mistake.

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An amendment cannot however be had for the mere asking. Some
explanation must be offered as to why the amendment is required and

if the application for amendment is not timeously made some
reasonably satisfactory account must be given for the delay. Of
course,
if the application to amend is mala fide or if the amendment
causes an injustice to the other side which cannot be compensated by

costs, or in other words, if the parties cannot be put back for the
purposes of justice into the same position as they were in
when the
pleading it is sought to amend was filed, the application will not be
granted."

The
learned judge then went on to consider the authorities dealing with
"prejudice" and came to the following conclusion

"Overall, therefore, is the vital consideration that no
amendment will be allowed in circumstances which will cause the other

party such prejudice as cannot be cured by an order for costs and,
where appropriate, a postponement. Where there is a real doubt
as to
whether or not prejudice or injustice will be caused to the other
party if the amendment is allowed, it should be refused,
but not
merely to punish the party seeking the amendment for his neglect. See
Trans-Drakensberg Bank Ltd v Combined Engineering
1967 (3) SA 632 (D)
at 638-639. . "

In the
present case not only has there been no explanation for the years of
delay in bringing the application for the amendments
but in my
judgment there is a real doubt as to whether or not prejudice or
injustice will be caused to the respondent. Mr. Wessels
urged us to
find that there was no evidence on record that the documents needed
by the respondent to meet the new matter raised
in the amendments
were destroyed by the respondent nor that such destruction was
reasonable in the circumstances.

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Mr.
Woker, however, informed us that on the day of the hearing there was
in court a witness who was available to give evidence on
behalf of
the respondent that its records, which were essential for the
respondent to meet the new defence raised, were destroyed
"in
the ordinary course of business" in 1994. Counsel referred us to
his heads of argument in the court a quo in which,
in regard to the
evidence in question, it is stated, "If the defendant disputes
this (viz the destruction of the documents)
I have a witness that I
wish to call to prove it." Mr. Woker went on to say that there
was no dispute raised. In fairness
to Mr. Weasels it should be said
that he did not appear in the court below.

In the
light of the foregoing, and particularly in view of the onus being on
the appellant to prove his entitlement to the amendments
sought, I am
of the opinion that had they been permitted the. amendments may well
have prejudiced the respondent. That being so,
in my judgment Mofolo
J, correctly refused the application relating to the amendments.

I now
turn to consider the question as to whether or not, in the
circumstances, the filing of the replication constituted a waiver
of
the respondent's right to oppose the amendments.

In Collen
v Reitfontein Engineering Works 1948 (1)SA 413 (AD), Centlivres JA
(as he then was) said at p 436:-

"Apart from the fact that it would be too late, in the absence
of pleadings alleging

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waiver and in the absence of any contention of waiver before the
trial Court, to raise the defence of waiver before an appellate

tribunal, it should be pointed out, as INNES, C.J., stated in Laws v.
Rutherford, 1921 A.D.261, that the onus of proving waiver
is strictly
on the party alleging it and he must show that the other party with
full knowledge of his right decided to abandon
it, whether expressly
or by conduct plainly inconsistent with an intention to enforce it."

see too,
MONTESSS TOWNSHIP AND INVESTMENT

CORP. V.
GOUWS AMD ANOR. 1965 (4) SA 373 (AD)

Mr
Wessels submitted that once the respondent filed the replication
which he said was "on face value unconditionally",
such
step clearly indicates an explicit or, at least, a tacit concession
of a lack of opposition to the amendments. He urged that
had the
trial gone on on the 11th May the pleadings would have been
considered closed and the replication would have been the instrument

of their closure. It seems to me that that approach begs the
question. The trial did not proceed on the 11th May and when the
adjournment was sought by the respondent in order to consider the
proposed amendments counsel specifically placed on record that
it the
respodnent reserved the right to oppose the amendments should it
decide to do so. In the face of that reservation, which
would not
have been necessary if all that the respondent wanted was to preserve
its rights during the two days of the adjournment.
I do not think
that the filing of the replication (even though Mr. Woker candidly
stated that it was filed so that the trial could
continue) in the
circumstances of this case and by itself shows that a decision was
taken by the respondent to abandon its right
to oppose the amendments
in the

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event of
the trial not commencing in August 1995. There were several other
points argued before us namely

1. Whether
   it is necessary to file a counterclaim if one wishes to take
   advantage of an alleged set-off and

   
   

2. Whether
   the learned judge a quo was correct in holding that the defendant
   was not entitled to particulars that it sought "for
   the
   purposes of trial" and

   
   

3. Whether
   the learned judge misdirected himself when he decided that the
   appellant was not entitled to require the respondent to
   make further
   discovery of documents.

   
   

As I read
the judgment point a) above is academic once the learned judge is
found to have correctly refused the amendments on other
grounds.
Prima facie, however, I think Mr Wessels submission to the effect
that set-off occurs automatically and that a counterclaim
is
unnecessary is supported by authority and is well-founded.

As to (b)
this is a matter strictly for the exercise of his discretion by the
learned judge and, assuming without deciding that
it is appealable,
nothing that has been said before us has persuaded me that this court
should interfere.

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With
regard to (c) - the submission that the court a quo erred in not
ordering the respondent to file a further discovery affidavit
- I am
of the view that the rules of court make no provision for such an
order. Rule 34(6) makes provision for the situation where
a party has
reason to believe that the other party has not made full discovery.
That sub-section was not invoked by the appellant
in this case. Mr.
Wessels referred to Rule 34(14). and submitted that that indicates
that a party which has made discovery can
be called upon to discover
again. In my view that is fallacious. As I read the Rule, sub-section
34(14) provides a mechanism wheereby
a party can be called upon to
make discovery during the course of an action if such party has not
already made discovery pursuant
to Rule 34(1), (2) and (3). As
respondent made discovery on 17 July 1995 i.e. a month before the
trial was to start the complaint
raised at the trial that the
affidavit of discovery was defective for the reason set out above can
only be regarded as one of many
examples of the appellant's efforts
to take every technical point in order to prolong the matter.

As far as
costs are concerned I can see no reason to interfere with the order
of the judge a quo. In fact I agree with his approach
and his order.
I can also see no reason why the appellant should be mulcted in the
costs involved in its preparation of the additional
documents which
should properly have been included in the record by the appellant.

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Mr. Woker
has asked that the appeal should be dismissed and that costs be
awarded on the attorney and client scale. As indicated
in this
judgment some of the points raised by Mr Wessels required serious
consideration and I have therefore decided, hesitantly
I may say, not
to accede to the submission regarding the scale of costs.

The
appeal is dismissed with costs such costs to include the costs
involved in preparing the volume of additional documents. I would

recommend to the Registrar that the trial in this matter be given
preference on the trial roll in an effort to avoid any further

delaying tactics which the appellant may have in mind. I think I
should point out once again that I do not intend to criticise
Mr.
Wessels whose sole role, as far as I am aware, has been to argue the
appeal which he did with candour and ability.

J. BROWDE

JUDGE OF
APPEAL.

I agree

G.P.C.
KOTZE

I agree

R.N. LEON

Delivered
at Maseru on ...........day of June, 1996.

For
Appellant –

For
Respondent -