Burrie Smith Ontwikkelaars (Pty) Ltd v Rustenburg Local Municipality (2868/08) [2017] ZANWHC 92 (17 August 2017)

Burrie Smith Ontwikkelaars (Pty) Ltd v Rustenburg Local Municipality (2868/08) [2017] ZANWHC 92 (17 August 2017)

The court found that the applicant's proposed amendment does not introduce a new cause of action but rather clarifies the factors to be considered in determining compensation for expropriated land, in line with both section 12 of the Expropriation Act and section 25(3) of the Constitution. The five factors listed in section 25(3) are allegations of fact that can be proven with evidence, and the applicant is not precluded from producing such evidence. The amendment does not render the particulars of claim vague or embarrassing, nor does it prejudice the respondent, who retains the opportunity to plead to the amended claim. The court exercised its discretion to allow the amendment, finding...

Citation
[2017] ZANWHC 92
Parties
Applicant: Burrie Smith Ontwikkelaars (Pty) Ltd; Respondent: Rustenburg Local Municipality
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
17 August 2017
Case Number
2868/08
Procedural Posture
Interlocutory Application / Application for Amendment of Particulars of Claim Under Rule 28
Outcome
Application for amendment granted; respondent ordered to pay costs including costs of two counsel.
Judges
DJAJE
Legal Topics
Expropriation, Compensation for Expropriation, Amendment of Pleadings, Section 25 Constitution, Section 12 Expropriation Act
Land and Property Civil Procedure Constitutional Law Expropriation Compensation for Expropriation Amendment of Pleadings Section 25 Constitution Section 12 Expropriation Act

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Parties

Burrie Smith Ontwikkelaars (Pty) Ltd

Applicant

Rustenburg Local Municipality

Respondent

Procedural Posture

Interlocutory Application / Application for Amendment of Particulars of Claim Under Rule 28

Legal Issues

  1. 1 Whether the applicant should be granted leave to amend its particulars of claim to include reliance on section 25(3) of the Constitution.
  2. 2 Whether the proposed amendment renders the particulars of claim vague and embarrassing or excipiable.
  3. 3 Whether the amendment introduces a new cause of action or merely clarifies the existing claim for compensation for expropriated land.

Ratio Decidendi

The court found that the applicant's proposed amendment does not introduce a new cause of action but rather clarifies the factors to be considered in determining compensation for expropriated land, in line with both section 12 of the Expropriation Act and section 25(3) of the Constitution. The five factors listed in section 25(3) are allegations of fact that can be proven with evidence, and the applicant is not precluded from producing such evidence. The amendment does not render the particulars of claim vague or embarrassing, nor does it prejudice the respondent, who retains the opportunity to plead to the amended claim. The court exercised its discretion to allow the amendment, finding...

Court Disposition

Application for amendment granted; respondent ordered to pay costs including costs of two counsel.

Orders

  • The amendment to the particulars of claim as set out in the notice to amend is granted.
  • The respondent is ordered to pay the costs of this application, including the employment of two counsel.