ABSA Bank Ltd v Cengimbo (896/2020) [2025] ZAECMHC 49 (10 June 2025)

ABSA Bank Ltd v Cengimbo (896/2020) [2025] ZAECMHC 49 (10 June 2025)

The court found that the plaintiff provided a reasonable explanation for the nine-day delay in bringing the amendment application, which was not caused by willful default but by a communication lapse. The defendant failed to demonstrate actual prejudice that could not be remedied by a costs order. The proposed amendment did not introduce a new cause of action but rather clarified and augmented the plaintiff's claim. The deletion of the Rule 46A prayer did not amount to a withdrawal of the claim without a tender of costs, and the High Court retained jurisdiction over the monetary claim. The defendant's objections regarding non-joinder and excipiability were found to be without merit, as...

Citation
[2025] ZAECMHC 49
Parties
Applicant: ABSA Bank Ltd; Respondent: Maxwell Howard Malihambe Cengimbo
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
10 June 2025
Case Number
896/2020
Procedural Posture
Amendment Application / Application for Leave to Amend Particulars of Claim; Opposed Motion
Outcome
Application for condonation and leave to amend particulars of claim granted.
Judges
Rusi
Legal Topics
Amendment of Pleadings, Mortgage Loan Agreement, Debt Restructuring Order, Special Plea Non Joinder, Interest Rate Dispute
Civil Procedure Banking and Finance Amendment of Pleadings Mortgage Loan Agreement Debt Restructuring Order Special Plea Non Joinder Interest Rate Dispute

Case Brief

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Parties

ABSA Bank Ltd

Applicant

Maxwell Howard Malihambe Cengimbo

Respondent

Procedural Posture

Amendment Application / Application for Leave to Amend Particulars of Claim; Opposed Motion

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to amend its particulars of claim by deleting the prayer for special executability and adding new paragraphs.
  2. 2 Whether the delay in bringing the amendment application should be condoned.
  3. 3 Whether the proposed amendment is bona fide or prejudicial to the defendant.

Ratio Decidendi

The court found that the plaintiff provided a reasonable explanation for the nine-day delay in bringing the amendment application, which was not caused by willful default but by a communication lapse. The defendant failed to demonstrate actual prejudice that could not be remedied by a costs order. The proposed amendment did not introduce a new cause of action but rather clarified and augmented the plaintiff's claim. The deletion of the Rule 46A prayer did not amount to a withdrawal of the claim without a tender of costs, and the High Court retained jurisdiction over the monetary claim. The defendant's objections regarding non-joinder and excipiability were found to be without merit, as...

Court Disposition

Application for condonation and leave to amend particulars of claim granted.

Orders

  • The plaintiff is granted leave to amend its particulars of claim by deleting the prayer in terms of Uniform Rule 46A and by adding paragraphs 5.3.7 and 6 as set out in its notice to amend dated 08 November 2022.
  • The plaintiff shall deliver its amended particulars of claim within 10 days of this order.