De Wet Botha v Seiko Epson Kabushiki Kaisha (t/a Seiko Epson Corporation) (69411/2014) [2016] ZAGPPHC 262 (29 April 2016)

De Wet Botha v Seiko Epson Kabushiki Kaisha (t/a Seiko Epson Corporation) (69411/2014) [2016] ZAGPPHC 262 (29 April 2016)

The court found that there was insufficient evidence to support the existence of a partnership as alleged by the applicant. The applicant failed to provide a confirmatory affidavit from the alleged co-partner or any substantive evidence of the partnership's existence. The prior descriptions of the applicant in both the present and previous proceedings consistently indicated that he acted in his personal capacity. The proposed amendment would therefore lack a sustainable basis and would render the particulars of claim excipiable, as the claims were personal to the applicant and not to a partnership. The application for amendment was dismissed, and costs were awarded to the respondent.

Citation
[2016] ZAGPPHC 262
Parties
Applicant: Marthinus Johannes De Wet Botha; Respondent: Seiko Epson Kabushiki Kaisha (t/a Seiko Epson Corporation)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 April 2016
Case Number
69411/2014
Procedural Posture
Amendment Application / Opposed Application for Amendment of Summons and Particulars of Claim
Outcome
Application for amendment dismissed; costs awarded to respondent.
Judges
FHD Van Oosten
Legal Topics
Amendment of Pleadings, Excipiable Pleading, Counterfeit Goods Act, Trade Mark Infringement
Civil Procedure Intellectual Property Amendment of Pleadings Excipiable Pleading Counterfeit Goods Act Trade Mark Infringement

Case Brief

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Parties

Marthinus Johannes De Wet Botha

Applicant

Seiko Epson Kabushiki Kaisha (t/a Seiko Epson Corporation)

Respondent

Procedural Posture

Amendment Application / Opposed Application for Amendment of Summons and Particulars of Claim

Legal Issues

  1. 1 Whether the applicant may amend the particulars of claim to substitute himself with a partnership as plaintiff.
  2. 2 Whether the proposed amendment would render the particulars of claim excipiable and cause prejudice to the respondent.

Ratio Decidendi

The court found that there was insufficient evidence to support the existence of a partnership as alleged by the applicant. The applicant failed to provide a confirmatory affidavit from the alleged co-partner or any substantive evidence of the partnership's existence. The prior descriptions of the applicant in both the present and previous proceedings consistently indicated that he acted in his personal capacity. The proposed amendment would therefore lack a sustainable basis and would render the particulars of claim excipiable, as the claims were personal to the applicant and not to a partnership. The application for amendment was dismissed, and costs were awarded to the respondent.

Court Disposition

Application for amendment dismissed; costs awarded to respondent.

Orders

  • The application is dismissed.
  • The respondent is ordered to pay the costs of the application, including the costs consequent upon the employment of senior counsel.