FH Swanepoel Plant Hire CC v PMG Mining (Pty) Ltd (1291/2009) [2010] ZANCHC 36 (27 August 2010)

FH Swanepoel Plant Hire CC v PMG Mining (Pty) Ltd (1291/2009) [2010] ZANCHC 36 (27 August 2010)

The court found that the plaintiff's abandonment of the claim based on the second agreement does not amount to mala fide conduct and does not cause prejudice to the defendant that cannot be cured by a costs order. The plaintiff, as dominus litis, is entitled to elect which causes of action to pursue. The interim orders remain extant and should not be interfered with at this stage. The application for amendment is granted, with costs awarded against the plaintiff on an opposed basis. The rules nisi in case numbers 685/10 and 768/10 are extended until the agreed trial date.

Citation
[2010] ZANCHC 36
Parties
Plaintiff: FH Swanepoel Plant Hire CC; Defendant: PMG Mining (Pty) Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
27 August 2010
Case Number
1291/2009
Procedural Posture
Amendment Application / Application for Amendment of Particulars of Claim Prior to Trial
Outcome
Application for amendment granted; costs awarded against the plaintiff on an opposed basis; interim orders extended until trial date.
Judges
SA Majiedt
Legal Topics
Amendment of Pleadings, Written Contract, Mining Agreement, Prejudice and Costs, Abandonment of Claim
Civil Procedure Commercial and Corporate Amendment of Pleadings Written Contract Mining Agreement Prejudice and Costs Abandonment of Claim

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Parties

FH Swanepoel Plant Hire CC

Plaintiff

PMG Mining (Pty) Ltd

Defendant

Procedural Posture

Amendment Application / Application for Amendment of Particulars of Claim Prior to Trial

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to amend its particulars of claim to abandon the claim based on the second agreement and proceed only on claims arising from the main agreement.
  2. 2 Whether the proposed amendment is bona fide or mala fide and whether it causes prejudice to the defendant that cannot be cured by a costs order.
  3. 3 Whether the interim orders under case numbers 685/10 and 768/10 should be discharged or extended.

Ratio Decidendi

The court found that the plaintiff's abandonment of the claim based on the second agreement does not amount to mala fide conduct and does not cause prejudice to the defendant that cannot be cured by a costs order. The plaintiff, as dominus litis, is entitled to elect which causes of action to pursue. The interim orders remain extant and should not be interfered with at this stage. The application for amendment is granted, with costs awarded against the plaintiff on an opposed basis. The rules nisi in case numbers 685/10 and 768/10 are extended until the agreed trial date.

Court Disposition

Application for amendment granted; costs awarded against the plaintiff on an opposed basis; interim orders extended until trial date.

Orders

  • The application for amendment is granted.
  • The plaintiff is granted leave to amend its particulars of claim as per its notice of amendment in terms of Rule 28(4) dated 16 August 2010 within ten days from the date of this order.