Lategan N.O. and Others v NG White Farm Properties (Pty) Ltd and Others (1766/2017) [2021] ZANCHC 31 (23 July 2021)

Lategan N.O. and Others v NG White Farm Properties (Pty) Ltd and Others (1766/2017) [2021] ZANCHC 31 (23 July 2021)

The court found that the First Defendant did not raise new grounds of objection outside those stated in its notice of objection; the factual disputes raised were intertwined with the prescribed ground and did not constitute separate objections. The proposed amendment introduces a new cause of action, namely an enrichment claim, which was not previously pleaded and is distinct from a lien defence. Regarding prescription, the court accepted the reasoning that prescription for enrichment claims does not necessarily begin when improvements are made, but rather when the possessor becomes aware, or ought reasonably to have become aware, that their occupation is unlawful. The court determined...

Citation
[2021] ZANCHC 31
Parties
Plaintiff: Johannes Diederick Lategan N.O.; Plaintiff: Chereé Lategan N.O.; Plaintiff: Petrus Johannes Erasmus N.O.; Defendant: NG White Farm Properties (Pty) Ltd; Defendant: Willem Christoffel Scholtz N.O.; Defendant: Anna Judith Susanna Scholtz N.O.; Defendant: Hendrik Johannes van Eck N.O.; Defendant: Registrar of Deeds, Vryburg
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
23 July 2021
Case Number
1766/2017
Procedural Posture
Amendment Application / Application for Leave to Further Amend Particulars of Claim
Outcome
Leave to amend particulars of claim granted; costs to be borne by the First Defendant.
Judges
Snyders
Legal Topics
Amendment of Pleadings, Prescription Act, Unjust Enrichment, Occupation of Property, Rei Vindicatio
Civil Procedure Land and Property Amendment of Pleadings Prescription Act Unjust Enrichment Occupation of Property Rei Vindicatio

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Parties

Johannes Diederick Lategan N.O.

Plaintiff

Chereé Lategan N.O.

Plaintiff

Petrus Johannes Erasmus N.O.

Plaintiff

NG White Farm Properties (Pty) Ltd

Defendant

Willem Christoffel Scholtz N.O.

Defendant

Anna Judith Susanna Scholtz N.O.

Defendant

Hendrik Johannes van Eck N.O.

Defendant

Registrar of Deeds, Vryburg

Defendant

Procedural Posture

Amendment Application / Application for Leave to Further Amend Particulars of Claim

Legal Issues

  1. 1 Whether the First Defendant relied on grounds of objection outside those set out in its notice of objection.
  2. 2 Whether the proposed amendment introduces a new cause of action which has prescribed under the Prescription Act.

Ratio Decidendi

The court found that the First Defendant did not raise new grounds of objection outside those stated in its notice of objection; the factual disputes raised were intertwined with the prescribed ground and did not constitute separate objections. The proposed amendment introduces a new cause of action, namely an enrichment claim, which was not previously pleaded and is distinct from a lien defence. Regarding prescription, the court accepted the reasoning that prescription for enrichment claims does not necessarily begin when improvements are made, but rather when the possessor becomes aware, or ought reasonably to have become aware, that their occupation is unlawful. The court determined...

Court Disposition

Leave to amend particulars of claim granted; costs to be borne by the First Defendant.

Orders

  • The plaintiffs are granted leave to amend their particulars of claim in accordance with their notice of intention to amend as qualified in their replying affidavit.
  • The costs of the application are to be borne by the First Defendant.