FNB v Cronje and Others (3955/2019) [2022] ZAFSHC 145 (24 February 2022)

FNB v Cronje and Others (3955/2019) [2022] ZAFSHC 145 (24 February 2022)

The court held that the plaintiff, as dominis litis, is entitled to elect which claims to pursue and may amend its particulars of claim to reduce the number of mortgage bonds and properties forming part of its claim. The court found that there is no procedural requirement compelling the plaintiff to seek both monetary and executability relief simultaneously, and failure to do so does not constitute abandonment of security. The court accepted the reasoning in Changing Tides and Standard Bank v Hendricks, rejecting the defendants' reliance on Mokebe to bar the amendment. The court determined that the matter was not close to trial, and any potential prejudice to the defendants was remote, as...

Citation
[2022] ZAFSHC 145
Parties
Plaintiff: Firstrand Bank Ltd t/a First National Bank; Defendant: Philippus Johannes Jacobus Cronje; Defendant: Adolf Johannes de Brun N.O.; Defendant: Philippus Johannes Jacobus Cronje N.O.; Defendant: Cecile Cronje N.O.; Defendant: Andries Gustav Le Grange N.O.; Defendant: Die Cronje Seuns Boerdery CC; Defendant: Hendrik Bernardus Cronje; Defendant: Hester Cronje N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 February 2022
Case Number
3955/2019
Procedural Posture
Leave to Amend / Application for Leave to Amend Particulars of Claim and Counter Application for Discovery and Further Particulars
Outcome
Leave to amend particulars of claim granted; counter-application for discovery and further particulars granted; costs awarded against plaintiff.
Judges
C Reinders
Legal Topics
Amendment of Pleadings, Mortgage Bond Executability, Reckless Credit, Judicial Oversight, Rule 28 Amendment, Rule 35 Discovery
Civil Procedure Banking and Finance Amendment of Pleadings Mortgage Bond Executability Reckless Credit Judicial Oversight Rule 28 Amendment Rule 35 Discovery

Case Brief

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Parties

Firstrand Bank Ltd t/a First National Bank

Plaintiff

Philippus Johannes Jacobus Cronje

Defendant

Adolf Johannes de Brun N.O.

Defendant

Philippus Johannes Jacobus Cronje N.O.

Defendant

Cecile Cronje N.O.

Defendant

Andries Gustav Le Grange N.O.

Defendant

Die Cronje Seuns Boerdery CC

Defendant

Hendrik Bernardus Cronje

Defendant

Hester Cronje N.O.

Defendant

Procedural Posture

Leave to Amend / Application for Leave to Amend Particulars of Claim and Counter Application for Discovery and Further Particulars

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to amend its particulars of claim to reduce the number of mortgage bonds and properties forming part of its claim.
  2. 2 Whether the amendment would prejudice the defendants or hamper the administration of justice.
  3. 3 Whether the plaintiff is obliged to seek monetary and executability relief simultaneously.

Ratio Decidendi

The court held that the plaintiff, as dominis litis, is entitled to elect which claims to pursue and may amend its particulars of claim to reduce the number of mortgage bonds and properties forming part of its claim. The court found that there is no procedural requirement compelling the plaintiff to seek both monetary and executability relief simultaneously, and failure to do so does not constitute abandonment of security. The court accepted the reasoning in Changing Tides and Standard Bank v Hendricks, rejecting the defendants' reliance on Mokebe to bar the amendment. The court determined that the matter was not close to trial, and any potential prejudice to the defendants was remote, as...

Court Disposition

Leave to amend particulars of claim granted; counter-application for discovery and further particulars granted; costs awarded against plaintiff.

Orders

  • Leave is granted to the plaintiff to amend its particulars of claim as set out in the notice of intention to amend dated 23 December 2021.
  • The reference to 'second' in paragraph 68 of the plaintiff's notice of intention to amend dated 23 September 2021 is substituted with 'third'.