Firstrand Bank Limited v Erasmus :In re: Erasmus v Firstrand Bank Limited (2017/27120) [2022] ZAGPJHC 395 (10 June 2022)

Firstrand Bank Limited v Erasmus :In re: Erasmus v Firstrand Bank Limited (2017/27120) [2022] ZAGPJHC 395 (10 June 2022)

The court found that Ms Erasmus's application for amendment was procedurally defective, as it was not supported by a founding affidavit and was made through heads of argument, contrary to Rule 28(4). The consolidation application was impermissible because Rule 11 does not allow consolidation of issues or mixing application and action proceedings, and the new matter was not certified by the Commercial Court. The respondent failed to demonstrate convenience or lack of prejudice to the applicant. The court further found that the respondent's affidavit contained scandalous, vexatious, and irrelevant allegations against the applicant's attorney, which constituted an inappropriate personal...

Citation
[2022] ZAGPJHC 395
Parties
Applicant: Firstrand Bank Limited t/a inter alia RMB Private Bank; Respondent: Nicolette Erasmus
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 June 2022
Case Number
2017/27120
Procedural Posture
Interlocutory Application / Second Interlocutory Applications: Amendment and Consolidation
Outcome
Both the amendment and consolidation applications are dismissed. Specified paragraphs of the respondent's affidavit are struck out. Costs are awarded against the respondent, including attorney and own client costs for the striking out application.
Judges
Siwendu
Legal Topics
Amendment of Pleadings, Consolidation of Actions, Striking Out Scandalous Averments, Costs Award, Commercial Court Practice
Civil Procedure Commercial and Corporate Amendment of Pleadings Consolidation of Actions Striking Out Scandalous Averments Costs Award Commercial Court Practice

Case Brief

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Parties

Firstrand Bank Limited t/a inter alia RMB Private Bank

Applicant

Nicolette Erasmus

Respondent

Procedural Posture

Interlocutory Application / Second Interlocutory Applications: Amendment and Consolidation

Legal Issues

  1. 1 Whether the respondent's application to amend her counter-application complies with Rule 28(4).
  2. 2 Whether the respondent's application for consolidation of action and application proceedings is permissible under Rule 11.
  3. 3 Whether the respondent's affidavit contains scandalous, vexatious, or irrelevant averments warranting striking out.

Ratio Decidendi

The court found that Ms Erasmus's application for amendment was procedurally defective, as it was not supported by a founding affidavit and was made through heads of argument, contrary to Rule 28(4). The consolidation application was impermissible because Rule 11 does not allow consolidation of issues or mixing application and action proceedings, and the new matter was not certified by the Commercial Court. The respondent failed to demonstrate convenience or lack of prejudice to the applicant. The court further found that the respondent's affidavit contained scandalous, vexatious, and irrelevant allegations against the applicant's attorney, which constituted an inappropriate personal...

Court Disposition

Both the amendment and consolidation applications are dismissed. Specified paragraphs of the respondent's affidavit are struck out. Costs are awarded against the respondent, including attorney and own client costs for the striking out application.

Orders

  • The application for amendment is dismissed.
  • The application for consolidation is dismissed.