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

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

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.

Citation
[2017] ZAGPJHC 93
Parties
Respondent: A Melamed Finance (Pty) Ltd (in liquidation); Applicant: Sandra Phyllis Hirschowitz
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 February 2017
Case Number
09853/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Amendment Application
Outcome
Application for leave to appeal refused; costs awarded against the applicant.
Judges
M A Makume
Legal Topics
Amendment of Pleadings, Withdrawal of Admission, Leave to Appeal, Costs Order
Civil Procedure Amendment of Pleadings Withdrawal of Admission Leave to Appeal Costs Order

Case Brief

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Parties

A Melamed Finance (Pty) Ltd (in liquidation)

Respondent

Sandra Phyllis Hirschowitz

Applicant

Procedural Posture

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

Legal Issues

  1. 1 Whether the intended amendment to the plea constitutes a withdrawal of an admission.
  2. 2 Whether the application to amend was made in good faith or is mala fide.
  3. 3 Whether there are reasonable prospects of success for the appeal against the dismissal of the amendment application.

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.

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.