Fox NO and Others v Myburgh and Others (05/25647) [2013] ZAGPJHC 196 (11 June 2013)

Fox NO and Others v Myburgh and Others (05/25647) [2013] ZAGPJHC 196 (11 June 2013)

The court found that the claim against the Fifth Respondent, Connie Myburgh Inc, had become prescribed under the Prescription Act, as the running of prescription was not interrupted by service of summons on the First Respondent. The application was not a mere correction of a misnomer but sought to add a new party after prescription had run. The Applicants failed to demonstrate an enforceable claim against the Fifth Respondent, and joinder at this stage would unfairly deprive the Fifth Respondent of its prescription defence. Accordingly, the application for joinder was dismissed.

Citation
[2013] ZAGPJHC 196
Parties
Applicant: Jonathan Mark Fox N.O.; Applicant: Andre Pierre Le Roux N.O.; Applicant: Robert Allan Collins N.O.; Applicant: The Best Trust Company (JHB) (Pty) Limited; Applicant: Solution 1 (Pty) Limited; Applicant: Dataforce Trading 193 (Pty) Limited; Respondent: Connie Myburgh
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 June 2013
Case Number
05/25647
Procedural Posture
Joinder Application / Application for Joinder of Fifth Respondent in Main Action
Outcome
Application for joinder dismissed with costs.
Judges
Kolbe
Legal Topics
Joinder of Parties, Prescription Act, Misrepresentation, Amendment of Pleadings
Civil Procedure Joinder of Parties Prescription Act Misrepresentation Amendment of Pleadings

Case Brief

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Parties

Jonathan Mark Fox N.O.

Applicant

Andre Pierre Le Roux N.O.

Applicant

Robert Allan Collins N.O.

Applicant

The Best Trust Company (JHB) (Pty) Limited

Applicant

Solution 1 (Pty) Limited

Applicant

Dataforce Trading 193 (Pty) Limited

Applicant

Connie Myburgh

Respondent

Procedural Posture

Joinder Application / Application for Joinder of Fifth Respondent in Main Action

Legal Issues

  1. 1 Whether the Fifth Respondent, Connie Myburgh Inc, can be joined as a defendant in the main action.
  2. 2 Whether the claim against the Fifth Respondent has become prescribed under the Prescription Act.
  3. 3 Whether the joinder would result in prejudice to the Fifth Respondent.

Ratio Decidendi

The court found that the claim against the Fifth Respondent, Connie Myburgh Inc, had become prescribed under the Prescription Act, as the running of prescription was not interrupted by service of summons on the First Respondent. The application was not a mere correction of a misnomer but sought to add a new party after prescription had run. The Applicants failed to demonstrate an enforceable claim against the Fifth Respondent, and joinder at this stage would unfairly deprive the Fifth Respondent of its prescription defence. Accordingly, the application for joinder was dismissed.

Court Disposition

Application for joinder dismissed with costs.

Orders

  • The application is dismissed with costs, including costs consequent upon the employment of Senior Counsel.