De Beer NO and Others v Old Mutual Life Assurance Company (South Africa) Limited and Another (3794/08) [2011] ZAWCHC 131 (7 February 2011)

De Beer NO and Others v Old Mutual Life Assurance Company (South Africa) Limited and Another (3794/08) [2011] ZAWCHC 131 (7 February 2011)

The court found that ABSA satisfactorily explained its failure to serve the third party notice before the close of pleadings, citing ongoing settlement negotiations and the contingent nature of the remaining claim. The evidence showed that ABSA's liability to the Trust depended on Old Mutual's alleged breach of the underlying agreement. The court was satisfied that ABSA made out a prima facie case for third party proceedings as required by Rule 13(3)(b). Accordingly, leave was granted to ABSA to serve a third party notice on Old Mutual.

Citation
[2011] ZAWCHC 131
Parties
Plaintiff: Bosman De Beer N.O.; Plaintiff: Hugo Anton Rudolf van Veen N.O.; Plaintiff: Isak Hendrik Johannes Visagie N.O.; Defendant: Old Mutual Life Assurance Company (South Africa) Limited; Defendant: ABSA Brokers (Pty) Ltd (now known as ABSA Insurance & Financial Advisers (Pty) Ltd)
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 February 2011
Case Number
3794/08
Procedural Posture
Third Party Application / Application for Leave to Serve Third Party Notice After Close of Pleadings
Outcome
Leave granted to ABSA to serve a third party notice on Old Mutual; costs to be costs in the cause.
Judges
Baartman
Legal Topics
Third Party Proceedings, Contractual Damages, Rule 13 Uniform Rules, Breach of Contract
Civil Procedure Commercial and Corporate Third Party Proceedings Contractual Damages Rule 13 Uniform Rules Breach of Contract

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Parties

Bosman De Beer N.O.

Plaintiff

Hugo Anton Rudolf van Veen N.O.

Plaintiff

Isak Hendrik Johannes Visagie N.O.

Plaintiff

Old Mutual Life Assurance Company (South Africa) Limited

Defendant

ABSA Brokers (Pty) Ltd (now known as ABSA Insurance & Financial Advisers (Pty) Ltd)

Defendant

Procedural Posture

Third Party Application / Application for Leave to Serve Third Party Notice After Close of Pleadings

Legal Issues

  1. 1 Whether ABSA has furnished a satisfactory explanation for failing to issue the third party notice before the close of pleadings.
  2. 2 Whether ABSA has made out a prima facie case on the merits against Old Mutual for purposes of Rule 13(3)(b).

Ratio Decidendi

The court found that ABSA satisfactorily explained its failure to serve the third party notice before the close of pleadings, citing ongoing settlement negotiations and the contingent nature of the remaining claim. The evidence showed that ABSA's liability to the Trust depended on Old Mutual's alleged breach of the underlying agreement. The court was satisfied that ABSA made out a prima facie case for third party proceedings as required by Rule 13(3)(b). Accordingly, leave was granted to ABSA to serve a third party notice on Old Mutual.

Court Disposition

Leave granted to ABSA to serve a third party notice on Old Mutual; costs to be costs in the cause.

Orders

  • The Second Defendant, ABSA, is granted leave to serve a Third Party Notice on Old Mutual Life Assurance Company (SA) Limited.
  • Costs to be costs in the cause.