South Africa Judgment

South Gauteng High Court, Johannesburg

A Melamed Finance (Pty) Ltd v Hirschowitz (09853/2015) [2017] ZAGPJHC 93 (24 February 2017)

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Source document

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 Wilson

Sandra Phyllis Hirschowitz

Applicant Counsel: Adv Pretorius

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Dismissal of Amendment Application

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment text

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Source document

South Gauteng High Court, Johannesburg

Judgment

[2017] ZAGPJHC 93

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Section 17(1) of the Superior Courts Act

Legislation

Legislation referenced in the available case record.

Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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