[13] The accepted approach is that an amendment should not be granted where the introduction of such amendment would render such pleadings excipiable, however before an amendment will be refused on the grounds of excipiability, it must be clear that the amendment will (not may) render the pleadings excipiable. [14] The principle is that where an exception is taken on the grounds that no cause of action is disclosed or is sustainable on the particulars of claim, two aspects are to be emphasised. Firstly, for the purpose of deciding the exception, the facts as alleged in the plaintiff’s pleadings are taken as correct. Secondly, it is incumbent upon an excipient to persuade this court that upon every interpretation which the pleading can reasonably bear, no cause of action is disclosed. Stated otherwise, only if no possible evidence led on the pleadings can disclose a cause of action, will the particulars of claim be found to be excipiable. [15] On the of non-joinder: Non-joinder does not affect the cause of action. It is a dilatory plea which, if upheld, will cause the matter to be postponed to allow joinder. It does not affect the cause of action, i.e. the validity of the cause of action. [16] On the issue of the invalidity of the contract due to the contravention of s 25 and 38 of the Gambling Act: Whether a contravention of the provision of s 25 or s 38 of the Act would lead to invalidity of the underlying agreement, would depend on the interpretation of the Act itself. [17] In Namibian Association of Medical Aid Funds and Others v Namibia Competition Commission and Another at para 39, Smuts JA remarked: This court in Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC ‘[39] recently referred to the approach to be followed in the construction of text and cited the lucid articulation by Wallis JA of the approach to interpretation in South Africa in Natal Joint Municipal Pension Fund v Endumeni Municipality:
[13] The accepted approach is that an amendment should not be granted where the introduction of such amendment would render such pleadings excipiable, however before an amendment will be refused on the grounds of excipiability, it must be clear that the amendment will (not may) render the pleadings excipiable. [14] The principle is that where an exception is taken on the grounds that no cause of action is disclosed or is sustainable on the particulars of claim, two aspects are to be emphasised. Firstly, for the purpose of deciding the exception, the facts as alleged in the plaintiff’s pleadings are taken as correct. Secondly, it is incumbent upon an excipient to persuade this court that upon every interpretation which the pleading can reasonably bear, no cause of action is disclosed. Stated otherwise, only if no possible evidence led on the pleadings can disclose a cause of action, will the particulars of claim be found to be excipiable. [15] On the of non-joinder: Non-joinder does not affect the cause of action. It is a dilatory plea which, if upheld, will cause the matter to be postponed to allow joinder. It does not affect the cause of action, i.e. the validity of the cause of action. [16] On the issue of the invalidity of the contract due to the contravention of s 25 and 38 of the Gambling Act: Whether a contravention of the provision of s 25 or s 38 of the Act would lead to invalidity of the underlying agreement, would depend on the interpretation of the Act itself. [17] In Namibian Association of Medical Aid Funds and Others v Namibia Competition Commission and Another at para 39, Smuts JA remarked: ‘[39] This court in Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC recently referred to the approach to be followed in the construction of text and cited the lucid articulation by Wallis JA of the approach to interpretation in South Africa in Natal Joint Municipal Pension Fund v Endumeni Municipality:
J%20and%20M%20Casino%20Consulting%20CC%20v%20United%20Africa%20Group%20(Pty)%20Ltd%20(HC-MD-CIV-CON-2017-01344)%20[2018]%20NAHCMD%20176%20(18%20June%202018).docx