Ferreira v Senekal and Others (223/2020) [2023] ZAFSHC 55 (17 February 2023)

Ferreira v Senekal and Others (223/2020) [2023] ZAFSHC 55 (17 February 2023)

The court found that the plaintiff's intention was always to cite Matsepes (Bloemfontein) Inc as the second defendant, and that the misdescription was caused by the defendants' own conduct in using both company names and letterheads interchangeably. The evidence showed that all payments were made to the correct entity, and the directors of the 2003 company knew or ought to have known that they were not the intended defendant. The opposition to the amendment was unnecessary and frivolous, and any prejudice suffered by the second defendant could be cured by a costs order. The court held that the amendment should be granted and costs awarded against the second defendant.

Citation
[2023] ZAFSHC 55
Parties
Plaintiff: Machtilt Susanna Ferreira; Defendant: Frederick Jacobus Senekal; Defendant: Matsepes Inc; Defendant: FJ Senekal Inc
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 February 2023
Case Number
223/2020
Procedural Posture
Civil Application / Application to Amend Summons and Particulars of Claim During Partly Heard Trial
Outcome
Application to amend summons and particulars of claim granted; costs awarded against the second defendant.
Judges
Naidoo
Legal Topics
Amendment of Summons, Misdescription of Party, Professional Misconduct, Costs Award
Civil Procedure Commercial and Corporate Amendment of Summons Misdescription of Party Professional Misconduct Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Machtilt Susanna Ferreira

Plaintiff

Frederick Jacobus Senekal

Defendant

Matsepes Inc

Defendant

FJ Senekal Inc

Defendant

Procedural Posture

Civil Application / Application to Amend Summons and Particulars of Claim During Partly Heard Trial

Legal Issues

  1. 1 Whether the plaintiff should be permitted to amend the summons and particulars of claim to correctly cite the second defendant.
  2. 2 Whether the opposition to the amendment by the second defendant was justified and whether costs should be awarded against it.
  3. 3 Whether the misdescription of the second defendant caused prejudice that cannot be cured by a costs order.

Ratio Decidendi

The court found that the plaintiff's intention was always to cite Matsepes (Bloemfontein) Inc as the second defendant, and that the misdescription was caused by the defendants' own conduct in using both company names and letterheads interchangeably. The evidence showed that all payments were made to the correct entity, and the directors of the 2003 company knew or ought to have known that they were not the intended defendant. The opposition to the amendment was unnecessary and frivolous, and any prejudice suffered by the second defendant could be cured by a costs order. The court held that the amendment should be granted and costs awarded against the second defendant.

Court Disposition

Application to amend summons and particulars of claim granted; costs awarded against the second defendant.

Orders

  • The plaintiff's summons and particulars of claim are amended by deleting the reference to the second defendant as 'Matsepes Inc' and replacing it with 'Matsepes (Bloemfontein) Inc, Registration number 1998/020850/21'.
  • Matsepes Inc, Registration number 2003/023083/21, is directed to pay the plaintiff's costs of this application.