Clarke v Redford & Nationwide News No. DCCIV-99-314

Clarke v Redford and Nationwide News
[2000] SADC 24

Judge Smith
Civil

Introduction

This appeal dated the 4th September 2000, is against a decision of Master Kelly of this Court made by him on the 24th August 2000, whereby he granted both defendants leave to amend their defences to plead justification. The first defendant adopted the arguments of the second defendant on this appeal.

Powers of appellate Court

This appeal is pursuant to s.43(2)(a) of the District Court Act and the robust powers of this Court on appeal are set out in District Court Rule 97. Suffice it to say that this Court may exercise any discretion afresh and a finding that the Master has made an error is not a prerequisite to interfering with his decision; (see O’Brien Lovrinov Crafter Pty Ltd v Corradini (SCSA), Martin J, [1999] SASC 159, unreported, 15th April 1999).

Appellant’s argument in summary

In summary counsel for the appellant, Mr Harms, argued that the Master’s decision should be reversed as the plea of justification was an impermissibly late and cynical addition to the issues which, if allowed, would cause delay and markedly extend the duration of the trial. He further contended that the defendants did not make out a threshold entitlement for leave and, alternatively, if the discretion to give leave was enlivened, then leave should have been refused on grounds that the plaintiff will be irretrievably prejudiced. The respondents took issue with all these contentions. I turn now to examine the history of this action which is material to the Master’s decision and this appeal.

Background circumstances

In this action, which was commenced in this Court on the 5th March 1999, the plaintiff, Ralph Clarke (“Clarke”), seeks damages for defamation in respect of statements made to a journalist and a consequential article which appeared in “The Australian” on the 13th February 1999. The statements complained of were made by the first defendant, Angus Redford, (“Redford”), to Matthew Abraham (“Abraham”), who was a journalist employed by the second defendant, Nationwide News (“Nationwide News”). The full text of the article which resulted from the said statements is pleaded by the plaintiff in paragraph 9 of the Statement of Claim. By paragraph 10, the plaintiff pleads that the words were defamatory in that they meant that the plaintiff had, inter alia, perpetrated a violent criminal assault on Ms Edith Pringle (“Pringle”). In paragraph 10, the plaintiff, Clarke, pleaded, in particular, as follows:-
“10.1that the Plaintiff committed a criminal assault as evidenced by hospital records;
10.2that the Plaintiff had bashed Pringle and thereby committed a criminal assault;
10.3that the Plaintiff had subjected Pringle to a violent criminal assault;
10.4that the Plaintiff is not a normal human being in that he treated his partner in a disgraceful and inhuman way by excluding her from her then home so that she was obliged to take refuge on a blow-up mattress on the floor of an electorate office and in that he discarded her when it was convenient for him to do so.”
The defences of both Redford and Nationwide News included what is called a Polly Peck plea; (see Polly Peck (Holdings) Plc v Trelford (1986) 2 WLR 845). By paragraph 9, Redford denied that the words he used to Abraham carried the claimed imputation that Clarke perpetrated a violent criminal assault upon Pringle but rather the only imputation the words carried was that Clarke had subjected Pringle to “some violence”, which imputation it was claimed was not slander and further was true in substance and in fact. I set out in full hereunder paragraph 9 of the defence of Redford of the 24th May 1999:-
“9..... In the alternative to paragraph 8 above, the first Defendant says that if the Court finds that the words spoken by him to the said Abraham in their natural and ordinary meaning carried any imputation in respect to the Plaintiff (which is denied) then the only imputation that they carried was that the Plaintiff had subjected Ms Pringle to some violence, which imputation is not an actionable slander and further which imputation is true in substance and in fact.

Particulars
(i)     On the 12th November 1997, at 71 Redin Street Prospect, the Plaintiff pushed Ms Pringle so that she fell to the ground, and the Plaintiff slapped her on the face on two occasions while she was on the ground.
(ii)... In the morning of the 13th May 1998, at 71 Redin Street Prospect, the Plaintiff pushed Ms Pringle with both hands causing her to fall backwards into a bath.
(iii)   In the evening of the 13th May 1998, at 71 Redin Street Prospect, the Plaintiff pulled Ms Pringle by the hair and grabbed her wrists tightly.
(iv).. Shortly after the preceding incident, at 71 Redin Street, Prospect, the Plaintiff pushed Ms Pringle to the front of her body onto a bed, then rolled her over, and hit her on the backside five or six times with an open hand.
(v)     Shortly after, or about the time of, the preceding incidents, at 71 Redin Street, Prospect, the Plaintiff threatened Ms Pringle by saying “I ought to break you jaw”.
(vi).. As a result of the preceding incidents on 13th May 1998, the Plaintiff caused bruising and/or a rash and/or cuts to Ms Pringle.”

So too, by paragraphs 5 and 6 of its defence as amended on the 29th June 1999, Nationwide News, denied that the words in the article meant that Clarke perpetrated a violent assault on Ms Pringle and placed a so called lesser meaning on the words, namely, that Clarke had subjected Ms Pringle to “actual or apprehended acts of violence” which imputation was true in substance and in fact. Set out hereunder is the full text of paragraphs 5 and 6 of Nationwide News’ defence of the 29th June 1999:-
“5..... The second defendant denies the allegations contained in paragraph 10 of the Particulars of Claim and in particular denies that the words set forth in paragraph 9 of the Particulars of Claim bore or were understood to bear, or were capable of bearing any of the meanings set forth in paragraph 10.1 - 10.4 of the Particulars of Claim or any meaning defamatory to the plaintiff.
6.In the alternative to paragraph 5 above the second defendant says that if the court finds that the words set forth in paragraph 9 of the Particulars of Claim in their natural and ordinary meaning carried any imputation in respect of the plaintiff then the only imputation that they carried was that the plaintiff had subjected Ms Pringle to actual or apprehended acts of violence which imputation is true in substance and in fact.
6.1... On 12 November 1997, at 71 Redin Street Prospect, the plaintiff pushed Ms Pringle so that she fell to the ground, and the plaintiff slapped her on the face on two occasions while she was on the ground.
6.2    In the morning of 13 May 1998, at 71 Redin Street Prospect, the plaintiff pushed Ms Pringle with both hands causing her to fall backwards into a bath.
6.3... In the evening of the 13 May 1998, at 71 Redin Street Prospect, the plaintiff pulled Ms Pringle by the hair and grabbed her wrists tightly.
6.4    Shortly after the preceding incident, at 71 Redin Street, Prospect, the plaintiff pushed Ms Pringle to the front of her body onto a bed, then rolled her over, and hit her on the backside five or six times with an open hand.
6.5... Shortly after, or about the time of, the preceding incidents, at 71 Redin Street, Prospect, the plaintiff threatened Ms Pringle by saying “I ought to break you jaw”.
6.6    As a result of the preceding incidents on 13th May 1998, the Plaintiff caused bruising and/or a rash and/or cuts to Ms Pringle.”
It can be seen immediately that the difference between respective imputations contended for by Clarke on the one hand and Redford and Nationwide News on the other is all but illusory. I will refer to the plaintiff’s imputation as “the greater imputation” and the defendants imputation as “the lesser imputation”.
On the 29th June 1999, Clarke applied to strike out the Polly Peck pleas in the defence of Redford. On the 29th July 1999, Clarke made the same application in respect of the defence of Nationwide News. The applications were heard by Master Berry. On the 16th November 1999, whilst awaiting the decision of Master Berry, Clarke’s solicitors wrote to the defendants legal representatives forswearing an entitlement to damages on the basis of the lesser imputations pleaded in the defences. The relevant portion of the letter is set out here below:-
“Our client is prepared to stand or fall on his pleaded meaning as to criminal assault.
We understand that your concern is that the Court will find the lesser meaning of “subjected to violence” with no criminal element and will assess damages against your client unless (the) imputation is justified: the Polly-Peck issue.
We would have thought our Strike-out Applications necessarily made this clear, but to avoid any uncertainty, our client forswears the entitlement to damages on the basis of your clients’ pleaded meaning.
We accordingly call upon you to advise Master ... that you will submit to an order that the relevant paragraphs of your Defence be struck out. If you do so, our client will not press costs re that aspect of the application.
This is an open letter. Our client will rely upon it in the future on the issue of costs if necessary.”
With reference to the above letter, I fail to see how a court could possibly find that the published words conveyed that Clarke subjected Ms Pringle to violence with “no criminal element”. The pleadings in this action and indeed the arguments in the previous interlocutory applications and the appeals have proceeded on the basis that there is some material difference between:-

·....... an assault;

a criminal assault;
an assault without a criminal element; and
actual or apprehended acts of violence of the character pleaded by Nationwide News in paragraph 6 to 6.6 of its defence on 29th June 1999.

For instance, I would suggest there is no such creature as an assault without a criminal element because if there is the absence of a criminal element there is no assault (eg consent to being bumped in a football contest). I acknowledge that the exercise for the Court ultimately is to discern the perception of the ordinary members of the public as to the meaning of the words complained of, as opposed to lawyers; (see Kirby J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at paragraph 134). However, at issue here is the “flagging” of issues to be litigated and I mention this somewhat artificial distinction between the claimed meanings because it is pertinent to the issue of whether these amendments truly raise “new” matters. The difference between “violent criminal assault” on the one hand and “some violence” and “actual or apprehended acts of violence” on the other is, as I said, all but illusory.
I return to the history.
The defendants legal representatives did not take up the suggestion that they should contact the Master.
On the 19th January 2000 Master Berry refused the strike out applications.
On the 1st February 2000, Clarke appealed against the decision of Master Berry not to strike out the pleas of Nationwide News.
On the 6th March 2000, Judge Herriman dismissed the appeal. Inter alia, Judge Herriman found that the terms of the letter did not bind the plaintiff and that Nationwide News should be entitled to plead as it has on the basis of the pleadings as they then stood. In particular, His Honour concluded that the forswearing in the letter did not deprive Nationwide News of the right to seek to justify what I have called the lesser imputation. It is clear that Judge Herriman had some difficulty with this notion of a non criminal assault and moreover he was satisfied “that even if the plaintiff’s attempt to forswear reliance (by letter) has a binding effect, it does not meet the defence which the second defendant is pleading”; (see para 38 of Judgment).
On the 9th May 2000, Clarke filed an Amended Reply to the Amended Defence of Nationwide News in which he formally pleaded the forswearing of damages in accordance with the terms of the letter of the 16th November 1999. In respect of the defendant, Redford, my attention was not drawn to any similarly Amended Reply. Nor could I find it in the voluminous Court file. However, I will assume that Clarke formally pleaded the forswearing also in the case of Redford.
On the 10th July 2000, Redford applied to amend his defence to plead in addition, justification of the greater imputation contended for by Clarke. The proposed new paragraph 9a of Redford asserts that if, which is denied in paragraph 9, the words spoken by Redford to Abraham were slanderous and:-
“the only imputation that they carried was that the plaintiff had committed an assault which imputation is true in substance and in fact and the first defendant will rely upon each of the particulars set out in paragraph 9 herein in respect thereof”.
Redford proposed another paragraph 9b in which he pleaded that if the words spoken of by him to Abraham in their natural and ordinary meaning, meant and were understood to mean what was contended for by Clarke, namely, what I have described as the greater imputation:-
“such meanings were true in substance and in fact and the first defendant relies on each of the particulars set out in paragraph 9 herein in respect thereof”.
So too, on the 11th July 2000, Nationwide News applied to further amend its Amended Defence to plead justification of the greater imputation contended for by Clarke. This amendment is found in paragraph 6A and is as follows:-
“6A.. In the further alternative to paragraph 5 above, the second defendant says that if the Court finds that the words set forth in paragraph 9 of the particulars of claim in their natural and ordinary meaning carry the imputations pleaded in sub-paragraphs 10.1, 10.2 and/or 10.3 of the particulars of claim, such imputations are true in substance and in fact.

Particulars
6AI The second Defendant relies upon the particulars set out in subparagraph 6.1 to 6.6 above.”

On the 24th August 2000, Master Kelly allowed the applications to amend and ordered Clarke to pay the costs of Redford and Nationwide News. The Master’s decision was apparently posted to the solicitors for the parties and therefore there was no argument about costs.
On the 4th September 2000, Clarke appealed against the orders of Master Kelly and so the matter comes before me.

Criteria for leave to amend

The power to grant leave to amend is found in District Court Rule 53. It is a wide discretion. Leave is granted to the party seeking to amend in the interests of justice provided, inter alia, there is no prejudice to the other party or parties which cannot be addressed by appropriate orders as to costs or otherwise. Of paramount importance, in the exercise of the discretion, is the notion of achieving justice between the parties and ensuring, as much as possible, that the litigation resolves, on the merits, all the issues between the parties; (see Cropper v Smith (1884) 26 ChD 700 at 710-711; State of Queensland v JL Holdings Pty Ltd (1996) 141 ALR 353 per Dawson, Gaudron, McHugh JJ at pp.356, 357).
As to leave to amend in defamation proceedings, even to introduce a plea of justification, it is clear that the criteria is the same; (see Gatley 9th Edition para 27.33; Tobin & Sexton, Australian Defamation Law and Practice para 25175).

Arguments

First of all, counsel for the appellant contended that, apart from some matters immaterial to the issues on this appeal, on the pleadings as they stood at the time of argument before the Master, there was no contest on any factual issues. He said that in issue was the natural and ordinary meaning of the words and as a matter of principle that was a matter for the Court and not evidence. Clearly that, as a principle of law, is correct; (see Gatley 9th Edition para 32.21 and see also Tobin & Sexton Australian Defamation Law and Practice para 26590). Counsel, Mr Harms, said the Master erred at page 11 of his reasons in asserting otherwise and that this error permeated his decision. Therefore, said the appellant, in allowing the amendments the Master introduced into the action a factual issue of justification which will cause delay and the trial to be significantly lengthened.
Putting aside for a moment whether the Master misconceived the law, I do not accept that, at the time of these applications, the only issue was the legal as opposed to the factual issue of the natural and ordinary meaning of the words. From an early stage of the pleadings, both defendants were entitled to agitate in evidence the issue of justification of the lesser imputations contended for by them. The truth of the lesser imputations was relevant, not only to liability but also to damages; (see Miles CJ in the Australian Capital Territory case Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 24, paras 3 and 4).
So, in my view even after the forswearing, assuming it adequately addressed the imputations contended for by Nationwide News, which is not the conclusion of Judge Herriman, the defendants were entitled, on the issue of quantum, to adduce evidence directed to the truth of whether Clarke inflicted violence, whatever its character, on Ms Pringle. If I am wrong, and the forswearing prevented the defendants from adducing evidence at all, on the issue of the alleged assault, then such preclusion, at least so far as Nationwide News is concerned, dated from the 9th May 2000 when the forswearing was pleaded in the plaintiff’s Amended Reply to the defence of Nationwide News. These applications were made two months later in July 2000, so that to use counsel, Mr Whitington Q.C.’s words, so far as the Nationwide News was concerned, there was a mere two month “window of time” from 9th May 2000 to 11th July 2000, during which the plaintiff might have considered that the issue of his relationship with Ms Pringle was not, after all, going to be aired. So it is not correct to say that the actual issue of whether or not Clarke subjected Ms Pringle to violence emerged suddenly upon these applications to amend on the 10th and 11th July 2000.
Secondly, the appellant contended that the amendments were new and that the Master was in error in finding to the contrary. In part the appellant is correct. Neither defendant pleaded justification of the imputations contended for by Clarke until the recent proposed amendments. However, as indicated, there is very little real difference between the greater and lesser imputations and the evidence likely to be adduced to justify either or both the greater and lesser imputations would be the same in that it would of necessity be relevant to whether Clarke subjected Ms Pringle to violence. In that sense, there is nothing new in the proposed amendments. At best from Clarke’s standpoint, from 29th June 1999 until the 9th May 2000, the defendant, Nationwide News, was entitled to agitate in evidence whether or not Clarke perpetrated actual or apprehended acts of violence on Ms Pringle. A similar contention applies in respect of Redford. So the amendments raised nothing which was new in the sense of putting Clarke on notice of a live factual issue which was not in issue before.
Thirdly, the appellant contended that the Courts have been reluctant to allow late pleas of justification. According to counsel, Mr Harms, the Master did not approach the exercise of his discretion from this position of “reluctance” and therefore the exercise of discretion was flawed. First of all, I do not accept that the proposed amendments, were so late as to weigh heavily in the scales against the defendants. There have been at least two unsuccessful interlocutory applications and two unsuccessful appeals, including now this appeal, all of which have been instigated by Clarke. There has not been any inordinate delay by the defendants. It is unprofitable when considering the exercise of such a wide discretion to review the numerous authorities, which turn upon the myriad of differing circumstances which surround these applications, but it is worth noting that the cases show that what often engenders the “reluctance” referred to by counsel, Mr Harms, is the prospect of the proposed amendment causing the vacating of the time set aside for the trial; (see Perkins v Nationwide NewsPty Ltd (1992) 106 FLR 368; see also Associated Leisure Ltd v Associated Newspapers Ltd (1970) 2 QB 450). So, even if I accept that the proposed amendments raised “new matters” some 16 months after the institution of proceedings, that would not necessarily be fatal to allowing such amendments, because notably absent in this case, amongst other things, is the proximity of a trial date and the prospect of having to vacate it.

Fourthly, Mr Harms said that the Master did not take proper account of the following:-

·....... the lengthening of the trial;

prejudice to the defendant;
lack of adequate explanation; and
lack of bona fides.

I have previously dealt with the issue of the amendments having the effect of lengthening the trial. If, notwithstanding the forswearing, the partial justification plea could be agitated in evidence on the issue of quantum, this contention fails, because the trial always had the potential to be as long as it took to resolve the factual issue relating to the contended for violence upon Ms Pringle by Clarke. In any event, and at the risk of repeating myself, on the basis most favourable to the appellant, as far as Nationwide News is concerned, there was only a two month period when the issue of what happened between Clarke and Ms Pringle was not an issue, namely, from 9th May 2000 (ie date of Amended Reply) to the 11th July 2000 (ie date of application to amend). Further, even if the proposed amendments had the effect of lengthening the trial as contended for by counsel, Mr Harms, that circumstance, by itself, would not have persuaded me to refuse leave to amend.
I turn to the issue of prejudice. Counsel for the appellant, Mr Harms, relied upon the evidence of Clarke as to the prejudice deposed to in the two affidavits sworn 21st February 2000 and 27th July 2000. The prejudice claimed by Clarke is that the delays in this action are preventing him restoring his reputation which has been damaged by the publicity surrounding the aborted criminal prosecution. Since the criminal prosecution, he has lost labour pre‑selection for the State seat of Enfield. The prejudice now claimed by him is particularised, inter alia, in paragraph 5 of his affidavit sworn on the 27th July 2000. There he swears as follows:-
“5..... I say that the continuing delay in the hearing of the within action is causing me prejudice. Since the ejection of Peter Lewis from the Liberal Party the present Olsen government has become a minority government. I believe that that makes the possibility of an early election more likely. I believe that I am continuing to be prejudiced by the non-resolution of the subject proceedings. One of my options in the forthcoming state election is to run as an independent. One of my options in the forthcoming state election is to run as an independent. Whilst I have not yet made a final decision on whether or not to do so, one of the things which I need to take into account in making such a decision is whether or not I get an opportunity to restore my reputation through these proceedings before any election is announced. Not only will I be prejudiced if an election is called before this matter comes to trial or is in some way satisfactorily resolved but I am also presently prejudiced by my inability to take into account the outcome of these proceedings in making a decision as to whether or not I should stand as an independent at the election.”
The material deposed to by Clarke in the affidavits does not demonstrate the sort of prejudice which, by itself, would prove fatal to these applications. Clarke needed to show that he is worse off now, so far as his evidence in these proceedings is concerned, than he would have been, had the defence of full justification been pleaded at the outset of these applications or the application to amend to so plead, had been made at an earlier time; (see Reeves v Leyland Motor Corporation of Australia Ltd (No. 2) (1984) 115 LSJS 62 per Cox J at p.65). I accept that the matters deposed to by Clarke are proper and relevant complaints about delays and inconvenience, but these are not properly characterised as or irremediable prejudice, likely to weigh heavily in the balance against allowing the amendments. So too, there is a large component of what I would call “the pot calling the kettle black” in the claim by Clarke that the progress to trial has been inordinately slow. It has been slow in part because of the disputes about pleadings which he has prosecuted unsuccessfully.
Finally, Clarke as the plaintiff, ought to have anticipated when he embarked on this litigation, that all would not be smooth sailing.
I turn to the complaint of a lack of sufficient explanation by the defendant, Nationwide News. An explanation has been proffered by the solicitor acting for Nationwide News as to why this plea of justification to the greater imputation has arisen at this stage; (see of the affidavit of Samuel John Doyle sworn on the 10th July 2000). Paragraphs 15 and 16 particularise the core of the explanation as follows:-
“15... Since the publication of Judge Herriman’s reasons, I have become aware of further evidence relevant to the second defendant’s plea of justification.
16.The matters referred to above, have caused me to reconsider the appropriate approach to the defence of these pleadings by the second defendant and I received instructions today, Monday the 10th July 2000 to amend the defence in a accordance with the proposed second further amended defence of the second defendant which is Exhibit SJD1 to this letter.”
The “further evidence” was not disclosed.
In Associated Leisure Limited v Associated Newspapers Limited (supra) at 456, Lord Denning MR said:-
“But when the defendant seeks to plead justification at a late stage, his conduct will be closely inquired into. The court will expect him to have shown due diligence in making his inquiries and investigations. The court may well refuse him application if he has been guilty of delay or not made proper inquiries earlier.”
At paragraph 25,175 in Tobin & Sexton (supra) the learned authors indicate that, in recent times late applications to add pleas of justification have been scrutinised more rigorously. In this context, they referred to the recognition given by Courts to the principles of case flow management. However, at the heart of this argument is the premise that this was a late application. I say again that, though not originally pleaded, it was not a “late application” of the ilk referred to in many of the authorities - that is an application at or on the eve of trial to add a new defence which, if granted, would, inter alia, cause the vacating of the trial date because the other party would need to meet a case not previously pleaded. Further, “case flow management” considerations are properly subordinate to achieving justice between the parties and in particular would not by themselves be a ground to refuse an amendment which raised a significant ground of defence; (see Elliott v Elliott Enterprises (SCSA), Bleby J, [1998] SASC 6841, unreported, 2nd September 1998).
So sparse though the explanation was, I consider it adequate in the circumstances.
I now turn to the matter of the allegation of the lack of bona fides in the applications. I am not prepared to infer that there is some shadowy reason why Nationwide News made these recent amendments. Any such inference must reasonably arise from acceptable evidence. There is no such evidence. Rather, I have before me on this topic the affidavit of the solicitor acting for Nationwide News. Further, the pleadings demonstrate that the defendants from an early time intended to air the issue of whether or not Clarke subjected Ms Pringle to “some violence” and/or to “actual or apprehended acts of violence”. That is the acceptable evidence from which inferences arise and there is nothing arising which indicates lack of bona fides.
The appellant’s counsel finally suggested that I should conclude that the defendants could not hope to justify the imputations pleaded by the plaintiff, Clarke, in the light of the DPP entering a Nolle Prosequi against the plaintiff on the basis of reservations regarding Ms Pringle’s evidence which action was endorsed informally by the trial judge. This submission has no basis in law.
Finally, the appellant complains that the Master erred in ordering the plaintiff to pay the defendants costs of the application and argument. The appellant contends that, unless opposition to the application to amend is spurious, the usual order is that applicants for amendments pay the costs. Subject to minor variation to this order, I consider that the Master’s order was a proper exercise of his wide discretion. Costs should have followed the event. In my view, there is no usual order. Neither Rule 101.02(2)(a) nor Rule 53.11 fetter the Courts discretion and nor do they create some prima facie rule relating to applications to amend. Further, I do not characterise these applications as a party seeking an amendment to correct its own mistake as was the case in Mullett v Gabriel (1989) 52 SASR 330. In my view, the defendants were entitled to the costs of the argument against the plaintiff but the defendants should pay the plaintiff’s costs of and incidental to considering the application and any costs thrown away such as would attend the filing of a new Reply to the Amended Defences. To this extent, I vary the costs order.
If parties embark upon pleading wars and procedural jousting, which seems to be commonplace in defamation actions, then the loser should bear the penalty of paying the costs, particularly in circumstances such as prevailed here where the proposed pleading did not raise a new issue, was not so late as to cause the vacating of a trial date and there being no relevant prejudice demonstrated. The parties should, by their legal advisers, hasten the process of litigation proceeding speedily and efficiently to resolve in full, on the merits, all the issues between them.

Conclusion

Accordingly, I do not agree that the Master erred in the exercise of his discretion to grant leave to amend. Further, and in any event in the exercise of my own discretion I would grant leave to amend in the same terms of the Master. In the end, it is my view that the injustice to the defendants in not allowing them to pursue a legitimate defence manifestly outweighs the injustice to the plaintiff in allowing the amendments.
So, for the above reasons, I dismiss the appeal save that I vary the costs order made by the Master to the extent of allowing the appellant the costs of and incidental to considering the applications to amend and any costs thrown away as a result of the amendments such as the preparing, filing and serving of any further amended replies. However, the respondents (defendants) are to have their costs of and incidental to the argument before the Master.
I will hear the parties as to the costs of this appeal.

[2001] SADC 24

23 February 2001