Blasting and Excavating (Pty) Ltd v Dinkelmann (30800/2011) [2014] ZAGPPHC 889 (7 November 2014)

Blasting and Excavating (Pty) Ltd v Dinkelmann (30800/2011) [2014] ZAGPPHC 889 (7 November 2014)

The court found that the proposed amendment was cosmetic and did not introduce new matter not already contained or referred to in the particulars of claim. The objection that the amendment amounted to a withdrawal of an admission was rejected, as the amendment did not materially alter the cause of action. The court held that the National Credit Act issue and the question of prescription could be raised by the respondent in a special plea or in his plea, as there was no admissible evidence before the court regarding compliance with section 129 or prescription. The wording of the suretyship agreement was sufficiently broad to cover the judgment debt, which remains enforceable for 30 years....

Citation
[2014] ZAGPPHC 889
Parties
Applicant: Blasting and Excavating (Pty) Ltd; Respondent: Johan Adolph Dinkelmann
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 November 2014
Case Number
30800/2011
Procedural Posture
Amendment Application / Application for Amendment Under Rule 28(4) After Objection to Proposed Amendment
Outcome
Application for amendment granted; objection dismissed; no order as to costs.
Judges
A L C M Lephoko
Legal Topics
Amendment of Pleadings, Suretyship, Prescription, National Credit Act, Acknowledgement of Debt
Civil Procedure Commercial and Corporate Amendment of Pleadings Suretyship Prescription National Credit Act Acknowledgement of Debt

Case Brief

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Parties

Blasting and Excavating (Pty) Ltd

Applicant

Johan Adolph Dinkelmann

Respondent

Procedural Posture

Amendment Application / Application for Amendment Under Rule 28(4) After Objection to Proposed Amendment

Legal Issues

  1. 1 Whether the proposed amendment to the particulars of claim should be granted.
  2. 2 Whether the amendment amounts to a withdrawal of an admission requiring an affidavit.
  3. 3 Whether the National Credit Act applies and whether section 129 notice was required.

Ratio Decidendi

The court found that the proposed amendment was cosmetic and did not introduce new matter not already contained or referred to in the particulars of claim. The objection that the amendment amounted to a withdrawal of an admission was rejected, as the amendment did not materially alter the cause of action. The court held that the National Credit Act issue and the question of prescription could be raised by the respondent in a special plea or in his plea, as there was no admissible evidence before the court regarding compliance with section 129 or prescription. The wording of the suretyship agreement was sufficiently broad to cover the judgment debt, which remains enforceable for 30 years....

Court Disposition

Application for amendment granted; objection dismissed; no order as to costs.

Orders

  • The defendant’s objection dated 6 February 2014 is dismissed.
  • The plaintiff is granted leave to amend its amended particulars of claim dated May 2012 in accordance with the terms set out in the plaintiff’s notice of intention to amend dated 31 January 2014.