Covec SA (Pty) Ltd v Afri-Devo (Pty) Ltd (34554/2018) [2024] ZAGPPHC 664 (10 July 2024)

Covec SA (Pty) Ltd v Afri-Devo (Pty) Ltd (34554/2018) [2024] ZAGPPHC 664 (10 July 2024)

The court found that the proposed amendment was substantial, introduced new issues and dates not previously pleaded, and conflicted with the particulars of claim and the contract. The amendment sought to introduce evidence not discovered or canvassed with witnesses, and would require witnesses to be recalled, causing prejudice to the defendant that could not be compensated by a costs order. The amendment was brought at a very late stage, after six years of litigation and midway through trial, and would disrupt the proceedings. The court held that the interests of justice and considerations of prejudice outweighed the applicant's reasons for amendment. Accordingly, the application to amend...

Citation
[2024] ZAGPPHC 664
Parties
Applicant: Covec SA (Pty) Ltd; Respondent: Afri-Devo (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 July 2024
Case Number
34554/2018
Procedural Posture
Civil Application / Application to Amend Replication During Trial
Outcome
Application to amend replication refused with costs.
Judges
Potterill
Legal Topics
Amendment of Pleadings, Contractual Performance, Reciprocity, Waiver, Nec3 Engineering and Construction Contract
Civil Procedure Commercial and Corporate Amendment of Pleadings Contractual Performance Reciprocity Waiver Nec3 Engineering and Construction Contract

Case Brief

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Parties

Covec SA (Pty) Ltd

Applicant

Afri-Devo (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Application to Amend Replication During Trial

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to amend its replication at a late stage during trial.
  2. 2 Whether the proposed amendments introduce new causes of action or defences prejudicial to the defendant.
  3. 3 Whether the amendments are excipiable or conflict with the particulars of claim and contract.

Ratio Decidendi

The court found that the proposed amendment was substantial, introduced new issues and dates not previously pleaded, and conflicted with the particulars of claim and the contract. The amendment sought to introduce evidence not discovered or canvassed with witnesses, and would require witnesses to be recalled, causing prejudice to the defendant that could not be compensated by a costs order. The amendment was brought at a very late stage, after six years of litigation and midway through trial, and would disrupt the proceedings. The court held that the interests of justice and considerations of prejudice outweighed the applicant's reasons for amendment. Accordingly, the application to amend...

Court Disposition

Application to amend replication refused with costs.

Orders

  • The application to amend the replication is refused.
  • The applicant is ordered to pay the costs of the application.