Imperial Bank Ltd v Barnard NO and Others (349/12) [2013] ZASCA 42; 2013 (5) SA 612 (SCA) (28 March 2013)

Imperial Bank Ltd v Barnard NO and Others (349/12) [2013] ZASCA 42; 2013 (5) SA 612 (SCA) (28 March 2013)

The court held that the amendment to the particulars of claim did not substitute a new plaintiff but merely corrected a misdescription. The respondents, as liquidators, acted in their representative capacities on behalf of Pro Med Construction CC (in liquidation), and the claim was always that of Pro Med. The...

Source-derived case information.

Citation
[2013] ZASCA 42
Parties
Appellant: Imperial Bank Limited; Respondent: Hendrick Jacobus Rust Barnard N.O.; Respondent: Norman Klein N.O.; Respondent: Farouk Sharief N.O.; Respondent: Themba Benedict Lange N.O.; Respondent: Itumeleng Brenda Mohale N.O.
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2013
Case Number
349/12
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court, Johannesburg
Outcome
Appeal dismissed with costs.
Judges
Mpati, Cachalia, Pillay, Schoeman, Saldulker
Legal Topics
Company Liquidation, Locus Standi, Prescription Interruption, Amendment of Pleadings
Commercial and Corporate Civil Procedure Company Liquidation Locus Standi Prescription Interruption Amendment of Pleadings

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Summary, issues, holding and outcome

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Parties

Imperial Bank Limited

Appellant

Hendrick Jacobus Rust Barnard N.O.

Respondent

Norman Klein N.O.

Respondent

Farouk Sharief N.O.

Respondent

Themba Benedict Lange N.O.

Respondent

Itumeleng Brenda Mohale N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court, Johannesburg

Legal Issues

  1. 1 Whether the amendment of the particulars of claim amounted to a substitution of parties or a mere correction of misdescription.
  2. 2 Whether the original summons interrupted prescription under section 15(1) of the Prescription Act.
  3. 3 Whether the liquidators had locus standi to institute action in their own names or only in the name of the company in liquidation.

Ratio Decidendi

The court held that the amendment to the particulars of claim did not substitute a new plaintiff but merely corrected a misdescription. The respondents, as liquidators, acted in their representative capacities on behalf of Pro Med Construction CC (in liquidation), and the claim was always that of Pro Med. The original summons, served on the appellant, interrupted prescription under section 15(1) of the Prescription Act, as the right sought to be enforced remained the same before and after the amendment. No new cause of action or party was introduced, and the appellant suffered no prejudice that would defeat its prescription defence. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.