Bray v Boshoff NO and Others, In Re: Boshoff NO and Others v Bray (2017/1627) [2020] ZAGPJHC 211 (28 August 2020)

Bray v Boshoff NO and Others, In Re: Boshoff NO and Others v Bray (2017/1627) [2020] ZAGPJHC 211 (28 August 2020)

The court held that amendments to pleadings should generally be allowed unless they cause irremediable prejudice to the opposing party. The applicant's lack of locus standi at the time of litis contestatio could be cured by the subsequent re-cession of rights from Absa Bank, in line with the precedent set in Marigold Ice Cream Co (Pty) Ltd v National Co-operative Dairies Ltd. The court rejected the requirement for exceptional circumstances as set out in Philotex, favouring a flexible approach that prioritizes the existence of triable issues and the absence of mala fide conduct. However, the court acknowledged the respondents' concern regarding prescription and held that any damages claim...

Citation
[2020] ZAGPJHC 211
Parties
Applicant: Michael Geoffry Bray; Respondent: Christoffel Hendrik Boshoff N.O.; Respondent: Maria Boshoff N.O.; Respondent: Isobel Mc Aleenan N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 August 2020
Case Number
2017/1627
Procedural Posture
Leave to Amend / Application for Leave to Amend Counterclaim Prior to Trial
Outcome
Leave to amend the counterclaim is granted, subject to limitations regarding prescription.
Judges
T Siwendu
Legal Topics
Amendment of Pleadings, Locus Standi, Cession and Recession, Prescription of Claims, Holding Over Damages
Civil Procedure Land and Property Amendment of Pleadings Locus Standi Cession and Recession Prescription of Claims Holding Over Damages

Case Brief

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Parties

Michael Geoffry Bray

Applicant

Christoffel Hendrik Boshoff N.O.

Respondent

Maria Boshoff N.O.

Respondent

Isobel Mc Aleenan N.O.

Respondent

Procedural Posture

Leave to Amend / Application for Leave to Amend Counterclaim Prior to Trial

Legal Issues

  1. 1 Whether the applicant may amend his counterclaim to introduce rights acquired by re-cession after litis contestatio.
  2. 2 Whether the amendment retrospectively creates a cause of action and prejudices the respondents by defeating prescription.
  3. 3 Whether holding over damages constitute 'rent or other revenues' under the cession to Absa Bank.

Ratio Decidendi

The court held that amendments to pleadings should generally be allowed unless they cause irremediable prejudice to the opposing party. The applicant's lack of locus standi at the time of litis contestatio could be cured by the subsequent re-cession of rights from Absa Bank, in line with the precedent set in Marigold Ice Cream Co (Pty) Ltd v National Co-operative Dairies Ltd. The court rejected the requirement for exceptional circumstances as set out in Philotex, favouring a flexible approach that prioritizes the existence of triable issues and the absence of mala fide conduct. However, the court acknowledged the respondents' concern regarding prescription and held that any damages claim...

Court Disposition

Leave to amend the counterclaim is granted, subject to limitations regarding prescription.

Orders

  • The applicant is granted leave to amend its counterclaim in terms of the notice of amendment dated 18 December 2019 and must perfect the amendment within ten days.
  • If the trial court finds that the damages claim in the counterclaim was subject to the cession and re-cession from Absa Bank, then any damages claim for the period before the recession date up to the date when action proceedings were instituted shall have prescribed.