De Kock v Olivier (21144/2022) [2024] ZAWCHC 351 (6 November 2024)

De Kock v Olivier (21144/2022) [2024] ZAWCHC 351 (6 November 2024)

The applicant failed to provide a sufficient factual basis in his founding papers to justify the material amendments sought, particularly the change in the nature of the contract from construction of a new dwelling to alterations and renovations. The applicant did not explain why the amendment was required or demonstrate a triable issue, as required by established principles. The proposed rectification, estoppel, and waiver were similarly unsupported by facts. While some alternative amendments were allowed, the core amendments were refused. The applicant was ordered to pay the costs of the application and the respondent's costs for the aborted Rule 28(1) notice.

Citation
[2024] ZAWCHC 351
Parties
Applicant: Willem Christoffel De Kock; Respondent: Marco Joachemo Olivier
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 November 2024
Case Number
21144/2022
Procedural Posture
Amendment Application / Application for Leave to Amend Particulars of Claim Under Rule 28(4)
Outcome
Application for leave to amend is granted in part and dismissed in part; costs awarded against the applicant.
Judges
M W Janisch
Legal Topics
Amendment of Pleadings, Housing Consumers Protection Measures Act, Rectification of Contract, Estoppel, Waiver, Costs Orders
Civil Procedure Commercial and Corporate Amendment of Pleadings Housing Consumers Protection Measures Act Rectification of Contract Estoppel Waiver Costs Orders

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Parties

Willem Christoffel De Kock

Applicant

Marco Joachemo Olivier

Respondent

Procedural Posture

Amendment Application / Application for Leave to Amend Particulars of Claim Under Rule 28(4)

Legal Issues

  1. 1 Whether the applicant is entitled to amend his particulars of claim to change the nature of the building contract from construction of a new dwelling to alterations and renovations of an existing dwelling.
  2. 2 Whether the applicant has provided a sufficient factual basis for the proposed amendments, including rectification, estoppel, and waiver.
  3. 3 Whether the amendments would render the pleadings excipiable or cause prejudice to the respondent.

Ratio Decidendi

The applicant failed to provide a sufficient factual basis in his founding papers to justify the material amendments sought, particularly the change in the nature of the contract from construction of a new dwelling to alterations and renovations. The applicant did not explain why the amendment was required or demonstrate a triable issue, as required by established principles. The proposed rectification, estoppel, and waiver were similarly unsupported by facts. While some alternative amendments were allowed, the core amendments were refused. The applicant was ordered to pay the costs of the application and the respondent's costs for the aborted Rule 28(1) notice.

Court Disposition

Application for leave to amend is granted in part and dismissed in part; costs awarded against the applicant.

Orders

  • The applicant is granted leave to make the amendments prayed for in paragraph 1 of the Rule 28(1) notice (excluding the words regarding non-applicability of the Act) and paragraph 7 (proposed new paragraphs 21 and 22).
  • Save as aforesaid, the application is dismissed with costs on a scale as between party and party, including the costs of counsel.