Gihwala and Others v Meyeridricks (2009/27949) [2013] ZAGPJHC 164 (27 June 2013)

Gihwala and Others v Meyeridricks (2009/27949) [2013] ZAGPJHC 164 (27 June 2013)

The court found that the proposed amendments do not introduce a new cause of action but merely serve to quantify and clarify the original claim. The amendments retain the substance of the original particulars of claim, and the defendant will not be prejudiced or embarrassed in pleading thereto. The objections regarding prescription and lack of particularity are matters to be determined at trial and do not preclude the granting of the amendment. The application for amendment did not require a supporting affidavit, and the court exercised its discretion to grant the amendments, finding no mala fides or injustice to the defendant.

Citation
[2013] ZAGPJHC 164
Parties
Applicant: Dines Chandra Manilal Gihwala N.O.; Applicant: George Nicholas Papadakis N.O.; Applicant: Legatus Trust (Pty) Ltd; Respondent: RH Meyeridricks
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 June 2013
Case Number
2009/27949
Procedural Posture
Civil Application / Application for Amendment of Particulars of Claim
Outcome
Application for amendment granted.
Judges
D Dosio
Legal Topics
Amendment of Pleadings, Companies Act Section 424, Fiduciary Duty, Prescription, Vague and Embarrassing Pleading
Civil Procedure Commercial and Corporate Amendment of Pleadings Companies Act Section 424 Fiduciary Duty Prescription Vague and Embarrassing Pleading

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Parties

Dines Chandra Manilal Gihwala N.O.

Applicant

George Nicholas Papadakis N.O.

Applicant

Legatus Trust (Pty) Ltd

Applicant

RH Meyeridricks

Respondent

Procedural Posture

Civil Application / Application for Amendment of Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs should be granted leave to amend their particulars of claim as set out in the notice of amendment.
  2. 2 Whether the proposed amendments introduce a new cause of action or merely quantify the original claim.
  3. 3 Whether the amendments render the particulars of claim vague and embarrassing or excipiable.

Ratio Decidendi

The court found that the proposed amendments do not introduce a new cause of action but merely serve to quantify and clarify the original claim. The amendments retain the substance of the original particulars of claim, and the defendant will not be prejudiced or embarrassed in pleading thereto. The objections regarding prescription and lack of particularity are matters to be determined at trial and do not preclude the granting of the amendment. The application for amendment did not require a supporting affidavit, and the court exercised its discretion to grant the amendments, finding no mala fides or injustice to the defendant.

Court Disposition

Application for amendment granted.

Orders

  • The application for the amendment of the plaintiff’s particulars of claim in accordance with the plaintiff’s notice of amendment dated 30 May 2012 is granted.
  • The plaintiff is to pay the costs occasioned by the amendment, except that the defendant is to pay the costs of the opposition including the costs of senior counsel.