BOPHELO BAKERY (PTY.) LTD. v. CARGO CARRIERS (PTY.) LTD. 2000 (2) BLR 235 (HC)

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Citation: 2000 (2) BLR 235 (HC)
Court: High Court, Francistown
Case No:
Judge: Letsididi Ag J
Judgment Date: September 12, 2000
Counsel:
O. Moupo for the applicant. Ruhukya for the respondent.
Flynote
Practice and procedure - Court order - Amendment - When court competent to amend court order - Rules of the High  C  Court (Cap. 04:02), Ord. 48, r. 1.
Headnote
The applicant had, in the main action, instituted proceedings for damages against the first and second defendants consequent to a motor vehicle accident involving cars belonging to the parties, the second defendant having been the driver and employee of the first defendant. The plaintiff obtained an order for attachment of movable goods of the first defendant. The deputy-sheriff in pursuance of the order of court, attached property belonging to the respondent. The respondent objected that it was not the defendant mentioned in the order and  D  that its property had been improperly attached. The applicant conceded that the citation in the main action was erroneous, but it contended that the cited name was a trade name of the respondent, and further that the error was not fatal since it only amounted to an erroneous citation of an existing company, not a non-existing one. The applicant sought to have the original summons and the court order amended accordingly. Counsel for the respondent contended that the appropriate procedure under the circumstances was to withdraw the main action  E  and re-issue a new corrected summons.

Held: the application to amend the summons or the court order would be refused because an order of the court had been given and the provisions of Order 48(1) of the Rules of the High Court could not, in the circumstances, be invoked to amend the court order. Nor would any of the exceptions to the rule that once a court had duly  F  announced a final judgment or order, it had itself no authority to correct, alter, or supplement it, be applicable in the instant case. Firestone South Africa (Pty.) Ltd. v. Genticuro A.G. 1977 (4) S.A. 298 (A) applied. Dawson and Fraser (Pty.) Ltd. v. Havenga Construction (Pty.) Ltd. 1993 (3) S.A. 397 (BG), considered.
Case Information
Cases referred to:

    (1)    Dawson and Fraser (Pty.) Ltd. v. Havenga Construction (Pty.) Ltd. 1993 (3) S.A. 397 (BG).  G
    (2)    Firestone South Africa (Pty.) Ltd. v. Genticuro A. G. 1977 (4) S.A. 298 (A).
APPLICATION to amend an order of court. The facts are sufficiently set out H in the ruling. 

O. Moupo for the applicant.
Ruhukya for the respondent.
Judgment
Letsididi Ag. J.:
This is an application for amendment of a summons issued by the applicant against Wheels of Africa Zimbabwe (Pty.) Ltd.,

2000 (2) BLR p236
LETSIDIDI Ag J
described as the first defendant, and Lord Ganyane, described as the second defendant. The applicant applies  A  to substitute thereon Cargo Carriers (Pty.) Ltd. in place of the first and second defendants aforementioned. The cause of action in the main action, as can be discerned from the applicant's particulars of claim, is a claim for damages that arose from an accident between the applicant's motor vehicle and a motor vehicle then believed to belong to the first defendant. The said motor vehicle was allegedly driven by the second defendant in the course  B  and scope of his employment. On 22 June 2000 an order for attachment of the known movable goods of the first defendant was obtained by the applicant so that the goods could be held as security for the claim pending the finalisation of the main action. In pursuance of this order, the deputy-sheriff attached a truck and trailer belonging to Cargo Carriers (Pty.) Ltd., the respondent in this application. The respondent has, through its  C  attorneys, raised the point that it is not the defendant mentioned in the order and therefore its property has been improperly attached and should be released.
The applicant concedes that it was an error to cite, in the main action, the first defendant in the manner it did, but it submits that the name cited is in fact the trade name of the respondent which was not easily ascertainable, the  D  respondent being a peregrinus. Accordingly, it submits, the error cannot be fatal to the proceedings since it amounted to an incorrect citation of an existing company rather than a citation of a non-existing company.
The applicant has accordingly launched this application to amend the original summons and the court order by substituting Cargo Carriers (Pty.) Ltd. in place of Wheels of Africa as defendant/respondent.  E
The arguments advanced by counsel from both sides were wide and varied, but in my view the main issue for determination was whether an amendment could properly be brought by application, or whether the original summons ought to have been withdrawn and a fresh summons issued in its stead.  F
I was referred by both counsel to the case of Dawson and Fraser (Pty.) Ltd. v. Havenga Construction (Pty.) Ltd. 1993 (3) S.A. 397 (BG) where Hendler J. held at p. 401f with approval a passage in Herbstein and Van Winsen in The Civil Practice of the Superior Courts of South Africa (3rd ed.) at p. 195 that:  G
    "The Court may permit a summons to be amended by the addition or substitution of a new party where such a course would involve no prejudice to the defendant."
In the instant case the applicant seeks to amend not only a summons but also an order of court duly granted.  H
The question is whether this court has the power to alter the order. I was referred by the applicant to Order 48, rule 1 of the Rules of the High Court which reads:

2000 (2) BLR p237
LETSIDIDI Ag J
    "The court may in addition to any other power it may have mero motu, or, upon the application of any party affected,  A  rescind or vary-
    (a)    an order or judgment erroneously sought or erroneously granted without notice to any party affected thereby;
    (b)    an order or judgment in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission.  B
    (c)    an order or judgment granted as the result of a mistake common to all parties."
An order of this court has been given and Order 48, rule 1 cannot, in my view, assist the applicant as none of the situations contemplated by paragraphs (a), (b) and (c) apply in this instance. Neither do I believe that Order 16,  C  rule 10 or Order 32, rule 2 apply as the provisions contemplate a situation where the matter has not proceeded for hearing. In this matter an order has already been issued.
The further case of Firestone S.A. (Pty.) Ltd. v.GenticuroA.G. 1977 (4) S.A. 298 (A) laid down situations where  D  judgment or order of court may be altered or supplemented and stated in the headnote as follows:
    "Once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised,  E  its authority over the subject-matter has ceased. There are, however, a few exceptions to that rule. Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases: (1) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, that the court overlooked or inadvertently  F  omitted to grant. (2) The court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter 'the sense and substance' of the judgment or order. (3) The court may correct a clerical, arithmetical, or other error in its judgment or order so as to give effect to its true intention. This exception is confined to the mere correction of an error in  G  expressing judgment or order; it does not extend to altering its intended sense or substance. (4) Where counsel has argued the merits and not the costs of a case (which nowadays often happens since the question of costs may depend upon the ultimate decision on the merits), but the court, in granting judgment, also makes an order concerning the costs, it  H  may thereafter correct, alter or supplement that order."
In my view, none of the situations alluded to above can be said to exist in this application.

2000 (2) BLR p238
LETSIDIDI Ag J
It has been argued by the applicant that at the time it filed the original summons the applicant was not sure of the  A  correct defendant to cite in the summons before it was issued. Furthermore, that since the defendant has not categorically denied ownership of the motor vehicle that was involved in the accident then it should be the defendant. Accordingly, it was submitted, if its name is added it would not therefore suffer prejudice.
In response it was submitted by learned counsel, Mr. Ruhukya, for the respondent that in this instance it was not  B  a case of a wrong citation of a right party but the total omission of a party from the summons. In the circumstances, he argued, the applicant ought to have withdrawn the main action and issued fresh summons.
On the affidavits before me I find that the applicant had no justifiable reason to believe that the first defendant and  C  Cargo Carriers were one and the same entity for the following reasons:
    (i)    the applicant' s managing director concedes that the citation of the first defendant was an error;
    (ii)    the first defendant entered an appearance to defend through its attorneys which fact should have alerted  D  them that the first defendant and the respondent were two separate entities.
The proper cause should have been to abandon the summons and order and issue fresh summons.
The applicant has submitted that they may suffer prejudice by reason of the fact that the matter will have prescribed.  E
I have great sympathy for the applicant, but in my view, that is not a point that can justify this application being condoned against a party in whose name an order does not refer to. The applicant is the author of his own misfortune.
Accordingly, the application to amend fails and the objection taken succeeds.  F
In the result, the order granted on 22 June 2000 is discharged.
Costs on the ordinary scale are granted to the respondent.

Application dismissed.
M.G.S.

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