A Melamed Finance (Pty) Ltd v Hirschowitz (09853/2015) [2017] ZAGPJHC 93 (24 February 2017)
- Citation
- [2017] ZAGPJHC 93
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- M A Makume
- Case number
- 09853/2015
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- M A Makume
- Case number
- 09853/2015
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the proposed amendment to the plea would result in the withdrawal of an admission of fact that had become common cause between the parties. The application to amend was considered mala fide and prejudicial to the respondent. The applicant failed to provide any new information or argument to persuade the court that there were reasonable prospects of success on appeal. The delay in seeking the amendment further undermined the applicant's case. Accordingly, the application for leave to appeal was refused and costs were awarded against the applicant.
Court disposition
Application for leave to appeal refused; costs awarded against the applicant.
Orders
- The application for leave to appeal is refused.
- The applicant is ordered to pay the costs of the application.
02
Material facts
Parties
A Melamed Finance (Pty) Ltd (in liquidation)
Respondent Counsel: Adv WilsonSandra Phyllis Hirschowitz
Applicant Counsel: Adv Pretorius03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Amendment Application
04
Questions and positions
Legal issues
- 01
Whether the intended amendment to the plea constitutes a withdrawal of an admission.
- 02
Whether the application to amend was made in good faith or is mala fide.
- 03
Whether there are reasonable prospects of success for the appeal against the dismissal of the amendment application.
Party arguments
- Applicant
- The applicant contended that the amendment sought did not amount to a withdrawal of an admission and that she had not given her attorney and counsel correct instructions when the plea was initially delivered. She argued that the amendment was necessary to correct this and that there were reasonable prospects of success on appeal.
- Respondent
- The respondent argued that the amendment would result in the withdrawal of a statement of fact that had become common cause, and that the application to amend was mala fide and would prejudice the respondent's case. The respondent maintained that there were no reasonable prospects of success for the appeal.
05
Court’s reasoning
Legal principles
- 01
Section 17(1) of the Superior Courts Act
A court must be satisfied that there are reasonable prospects of success before granting leave to appeal.
- 02
Uniform Rules of Court; case law on amendment of pleadings
An amendment that withdraws an admission is generally not permitted unless justified and made in good faith.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the proposed amendment to the plea would result in the withdrawal of an admission of fact that had become common cause between the parties. The application to amend was considered mala fide and prejudicial to the respondent. The applicant failed to provide any new information or argument to persuade the court that there were reasonable prospects of success on appeal. The delay in seeking the amendment further undermined the applicant's case. Accordingly, the application for leave to appeal was refused and costs were awarded against the applicant.
Obiter and limits
- It is inconceivable that it took a whole year for the applicant to realise that she had not given her attorney and counsel correct instructions on the plea.
- Nothing new has been placed before the court to persuade it that there are reasonable prospects of success should the application be referred to the full bench.
Court disposition
Application for leave to appeal refused; costs awarded against the applicant.
- The application for leave to appeal is refused.
- The applicant is ordered to pay the costs of the application.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 09853/2015
Not reportable
Not of interest to other judges
Revised.
24/2/2017
In the matter between:
A MELAMED FINANCE (PTY) LTD (in liquidation) Respondent/Plaintiff
and
HIRSCHOWITZ,
SANDRA PHYLLIS Applicant/Defendant
JUDGMENT ON APPLICATION FOR LEAVE
TO APPEAL
MAKUME, J:
[1] On the 19th September 2016 I dismissed the Applicant’s application for leave to amend her plea in certain respects. The Applicant now seeks leave to appeal against that order of dismissal.
[2] In issue at that stage was whether or not the intended amendment constituted a withdrawal of an admission.
[3] In my judgment I found that indeed the amendment if allowed will result in withdrawal of a statement of fact which had become common cause as it had been admitted in the plea. I concluded that the application to amend was mala fide and will prejudice the Respondent’s case. I still stand by that conclusion.
[4] The test to be applied in deciding on an application for leave to appeal is set out in section 17(1) (a)-(c). A court must be satisfied and hold the opinion that there are reasonable prospects of success of the appeal itself before granting leave.
[5] In this application nothing knew has been placed before me to persuade me that there are reasonable prospects of success should I refer this application to amend to the full bench of this division.
[6] In this matter summons with detailed particulars of claim was issued during March 2015. The plea was delivered during September 2015 some five months later. The notice to amend paragraphs 3.1 and 3.2 of the plea was given on the 30th May 2016 almost a year and two months after the action was instituted. It is in my view inconceivable that it took a whole year for the applicant to realise that she had not given her attorney and counsel correct instructions on the plea.
[7] The Applicant has failed to persuade me that there are reasonable prospects of success of the appeal. Accordingly the application must fail.
ORDER
[8]
8.1 The application for leave to appeal is refused.
8.2 The Applicant is ordered to pay the costs of the application.
DATED at JOHANNESBURG on this the 3rd day of FEBRUARY 2017.
__________
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
DATE OF
HEARING
2nd FEBRUARY 2017
DATE OF
JUDGMENT
FEBRUARY 2017
FOR
APPLICANT
ADV PRETORIUS
INSTRUCTED BY
STAN FANAROFF & ASSOCIATES
107 Oxford Road
Rosebank, Johannesburg
Tel: (011) 880 2091
Ref: H40.7/Ms S Henning/Yvonne
FOR
RESPONDENT
ADV WILSON
INSTRUCTED BY
BROOKS & BRAADTVEDT INC
203 Jan Smuts Avenue
Parktown North
Johannesburg
Tel: (011) 788 7707
Ref: Mr A Brooks/1967
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