Charter Hi (Pty) Limited and Others v Minister of Transport (35719/99) [2007] ZAGPHC 208 (14 September 2007)

Charter Hi (Pty) Limited and Others v Minister of Transport (35719/99) [2007] ZAGPHC 208 (14 September 2007)

The court found that the amendment sought by the plaintiffs was a correction of a misdescription of the partnership's name and not the substitution of a new party. The original summons claimed payment of the debt by the owner of the aircraft, and the amendment merely rectifies the name of the partnership. The identity of the creditor remained the same, and the service of summons interrupted prescription for the correct creditor. The defendant's argument that the plaintiffs failed to prove the non-existence of a partnership known as Haw & Inglis was rejected, as the claim was always made by the owner of the aircraft, regardless of the name used. The amendment was therefore granted.

Citation
[2007] ZAGPHC 208
Parties
Plaintiff: Charter Hi (Pty) Limited; Plaintiff: Haw & Inglis (Pty) Limited; Plaintiff: Haw & Inglis; Defendant: Minister of Transport
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
14 September 2007
Case Number
35719/99
Procedural Posture
Civil Application / Application for Amendment of Particulars of Claim Prior to Trial
Outcome
Amendment granted; costs awarded against plaintiffs.
Judges
Van der Merwe
Legal Topics
Amendment of Pleadings, Misnomer, Prescription Act, Locus Standi
Civil Procedure Amendment of Pleadings Misnomer Prescription Act Locus Standi

Case Brief

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Parties

Charter Hi (Pty) Limited

Plaintiff

Haw & Inglis (Pty) Limited

Plaintiff

Haw & Inglis

Plaintiff

Minister of Transport

Defendant

Procedural Posture

Civil Application / Application for Amendment of Particulars of Claim Prior to Trial

Legal Issues

  1. 1 Whether the amendment sought by the plaintiffs constitutes a mere correction of a misdescription or the substitution of a new party.
  2. 2 Whether the claim has prescribed in terms of section 15(1) of the Prescription Act, 68 of 1969.
  3. 3 Whether the service of summons interrupted prescription for the correct creditor.

Ratio Decidendi

The court found that the amendment sought by the plaintiffs was a correction of a misdescription of the partnership's name and not the substitution of a new party. The original summons claimed payment of the debt by the owner of the aircraft, and the amendment merely rectifies the name of the partnership. The identity of the creditor remained the same, and the service of summons interrupted prescription for the correct creditor. The defendant's argument that the plaintiffs failed to prove the non-existence of a partnership known as Haw & Inglis was rejected, as the claim was always made by the owner of the aircraft, regardless of the name used. The amendment was therefore granted.

Court Disposition

Amendment granted; costs awarded against plaintiffs.

Orders

  • Prayer 1 of the notice of amendment dated 17 August 2001 is granted.
  • The plaintiffs are ordered to pay the costs of the application for leave to amend.