Barnes and Another v Kushite Investment Holdings (Pty) Ltd and Others (41516/2017) [2019] ZAGPPHC 490 (20 September 2019)

Barnes and Another v Kushite Investment Holdings (Pty) Ltd and Others (41516/2017) [2019] ZAGPPHC 490 (20 September 2019)

The court found that the defendants' challenge to the plaintiffs' authority was not properly raised in terms of Rule 7(1), as the notice was served outside the prescribed ten-day period and no leave was sought to raise it late. Powers of attorney and board resolutions were filed with the Registrar, who issued a certificate confirming authority, and no further objection was made. The attempt to revive the issue by amending the plea at a late stage amounted to a circumvention of Rule 7(1) and would allow a tactical advantage, which is contrary to the efficient administration of justice. The court exercised its discretion to refuse the amendment and ordered the defendants to pay costs.

Citation
[2019] ZAGPPHC 490
Parties
Applicant: Leroy Curtis Barnes; Applicant: Thabo Milton Ncalo; Respondent: Kushite Investment Holdings (Pty) Ltd; Respondent: Kushite Lifestyle (Pty) Ltd; Respondent: Andile Caleb Makhunga; Respondent: Buyisiwe Makhunga; Respondent: Motlatsi Mthimunye
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 September 2019
Case Number
41516/2017
Procedural Posture
Interlocutory Application / Application for Leave to Amend Plea
Outcome
The application for leave to amend the plea in accordance with paragraph 2 of the notice of intention to amend dated 13 June 2019 is dismissed; the application for leave to amend the plea in accordance with paragraph 22 is granted; the applicants are ordered to pay the costs of the application on an opposed scale,...
Judges
D S Fourie
Legal Topics
Amendment of Pleadings, Authority to Act, Rule 7 Challenge, Powers of Attorney
Civil Procedure Amendment of Pleadings Authority to Act Rule 7 Challenge Powers of Attorney

Case Brief

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Parties

Leroy Curtis Barnes

Applicant

Thabo Milton Ncalo

Applicant

Kushite Investment Holdings (Pty) Ltd

Respondent

Kushite Lifestyle (Pty) Ltd

Respondent

Andile Caleb Makhunga

Respondent

Buyisiwe Makhunga

Respondent

Motlatsi Mthimunye

Respondent

Procedural Posture

Interlocutory Application / Application for Leave to Amend Plea

Legal Issues

  1. 1 Whether the defendants may amend their plea to dispute the plaintiffs' authority to institute proceedings.
  2. 2 Whether the challenge to authority was properly raised in terms of Rule 7(1).
  3. 3 Whether the proposed amendment would render the plea excipiable or cause prejudice.

Ratio Decidendi

The court found that the defendants' challenge to the plaintiffs' authority was not properly raised in terms of Rule 7(1), as the notice was served outside the prescribed ten-day period and no leave was sought to raise it late. Powers of attorney and board resolutions were filed with the Registrar, who issued a certificate confirming authority, and no further objection was made. The attempt to revive the issue by amending the plea at a late stage amounted to a circumvention of Rule 7(1) and would allow a tactical advantage, which is contrary to the efficient administration of justice. The court exercised its discretion to refuse the amendment and ordered the defendants to pay costs.

Court Disposition

The application for leave to amend the plea in accordance with paragraph 2 of the notice of intention to amend dated 13 June 2019 is dismissed; the application for leave to amend the plea in accordance with paragraph 22 is granted; the applicants are ordered to pay the costs of the application on an opposed scale,...

Orders

  • The application for leave to amend the plea in accordance with paragraph 2 of the notice of intention to amend dated 13 June 2019 is dismissed.
  • The application for leave to amend the plea in accordance with paragraph 22 of the notice of intention to amend dated 13 June 2019 is granted.