Jacobs and Another v Garlicke and Bousfield Inc and Others (1340/2011) [2023] ZAKZDHC 66 (13 September 2023)

Jacobs and Another v Garlicke and Bousfield Inc and Others (1340/2011) [2023] ZAKZDHC 66 (13 September 2023)

The court found that Cotton King never had a valid claim against the defendant, as the investment was made by the applicant personally. The deed of cession acknowledged this fact, rendering the cession ineffective because there was no right to cede. The applicant's claim in her personal capacity had prescribed, and the issuing of summons in the name of Cotton King did not interrupt prescription. The applicant failed to provide a satisfactory explanation for the prolonged delay in filing her replying affidavit, and condonation was refused. Substitution would prejudice the defendant by forcing it to defend a claim with no prospects of success. The application for substitution was dismissed...

Citation
[2023] ZAKZDHC 66
Parties
Applicant: Lizelle Jacobs; Plaintiff: Cotton King Manufacturing (Pty) Limited (in liquidation); Defendant: Garlicke and Bousfield Inc; Respondent: PKF (Durban) Incorporated; Respondent: Patrick Robert; Respondent: Nerak Financial Services (Pty) Ltd; Respondent: Santam Limited; Respondent: Lombard Insurance Company Limited; Respondent: Underwriter at Lloyd's
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
13 September 2023
Case Number
1340/2011
Procedural Posture
Substitution Application / Judgment on Application for Substitution of Plaintiff
Outcome
Application for substitution dismissed with costs.
Judges
Mossop
Legal Topics
Substitution of Parties, Cession of Claims, Prescription, Security for Costs
Civil Procedure Commercial and Corporate Substitution of Parties Cession of Claims Prescription Security for Costs

Case Brief

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Parties

Lizelle Jacobs

Applicant

Cotton King Manufacturing (Pty) Limited (in liquidation)

Plaintiff

Garlicke and Bousfield Inc

Defendant

PKF (Durban) Incorporated

Respondent

Patrick Robert

Respondent

Nerak Financial Services (Pty) Ltd

Respondent

Santam Limited

Respondent

Lombard Insurance Company Limited

Respondent

Underwriter at Lloyd's

Respondent

Procedural Posture

Substitution Application / Judgment on Application for Substitution of Plaintiff

Legal Issues

  1. 1 Whether the applicant's supplementary affidavit should be admitted into evidence.
  2. 2 Whether the late filing of the applicant's replying affidavit should be condoned.
  3. 3 Whether Cotton King had a valid claim against the defendant and could cede such claim to the applicant.

Ratio Decidendi

The court found that Cotton King never had a valid claim against the defendant, as the investment was made by the applicant personally. The deed of cession acknowledged this fact, rendering the cession ineffective because there was no right to cede. The applicant's claim in her personal capacity had prescribed, and the issuing of summons in the name of Cotton King did not interrupt prescription. The applicant failed to provide a satisfactory explanation for the prolonged delay in filing her replying affidavit, and condonation was refused. Substitution would prejudice the defendant by forcing it to defend a claim with no prospects of success. The application for substitution was dismissed...

Court Disposition

Application for substitution dismissed with costs.

Orders

  • The application is dismissed with costs.