K&D Telemarketing CC and Others v Liberty Group t/a Liberty Life ; In re: Liberty Group t/a Liberty Life v K&D Telemarketing CC and Others (75525/2010) [2016] ZAGPPHC 793 (9 September 2016)

K&D Telemarketing CC and Others v Liberty Group t/a Liberty Life ; In re: Liberty Group t/a Liberty Life v K&D Telemarketing CC and Others (75525/2010) [2016] ZAGPPHC 793 (9 September 2016)

The court held that the order of absolution from the instance brought the action to an end and rendered the trial court functus officio. The respondent was not entitled to amend its particulars of claim under Rule 28 in the same proceedings. The authorities cited by the applicants were accepted as correct, and the respondent's reliance on Sparks v Sparks was found to be misplaced. The correct procedure for the respondent, if it wished to pursue its claim, was to commence proceedings de novo, not to amend the existing claim. Accordingly, the notice to amend was set aside as an irregular step.

Citation
[2016] ZAGPPHC 793
Parties
Applicant: K & D Telemarketing CC; Applicant: Karen Schafer; Applicant: Eric Butowsky; Respondent: Liberty Group Ltd t/a Liberty Life
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 September 2016
Case Number
75525/2010
Procedural Posture
Civil Application / Application to Set Aside Notice as Irregular Step After Absolution From the Instance
Outcome
Application granted; respondent's notice to amend set aside as irregular step and costs awarded to applicants.
Judges
C J Van Der Westhuizen
Legal Topics
Absolution From the Instance, Irregular Proceedings, Rule 28 Amendment, Rule 30 Application
Civil Procedure Absolution From the Instance Irregular Proceedings Rule 28 Amendment Rule 30 Application

Case Brief

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Parties

K & D Telemarketing CC

Applicant

Karen Schafer

Applicant

Eric Butowsky

Applicant

Liberty Group Ltd t/a Liberty Life

Respondent

Procedural Posture

Civil Application / Application to Set Aside Notice as Irregular Step After Absolution From the Instance

Legal Issues

  1. 1 Whether a notice to amend particulars of claim under Rule 28 is permissible after an order of absolution from the instance has been granted.
  2. 2 Whether the trial court is functus officio after granting absolution from the instance.
  3. 3 Whether the respondent must commence proceedings de novo or may amend the existing claim.

Ratio Decidendi

The court held that the order of absolution from the instance brought the action to an end and rendered the trial court functus officio. The respondent was not entitled to amend its particulars of claim under Rule 28 in the same proceedings. The authorities cited by the applicants were accepted as correct, and the respondent's reliance on Sparks v Sparks was found to be misplaced. The correct procedure for the respondent, if it wished to pursue its claim, was to commence proceedings de novo, not to amend the existing claim. Accordingly, the notice to amend was set aside as an irregular step.

Court Disposition

Application granted; respondent's notice to amend set aside as irregular step and costs awarded to applicants.

Orders

  • The Respondent's Notice in terms of Rule 28, dated 18 February 2016, served on the Applicants in the matter under case number 2010/75525 is set aside as an irregular step.
  • The respondent is to pay the costs.