Make Commodities (Pty) Ltd v Afrisam (South Africa) (Pty) Ltd (3071/2018) [2019] ZAGPJHC 62 (5 March 2019)

Make Commodities (Pty) Ltd v Afrisam (South Africa) (Pty) Ltd (3071/2018) [2019] ZAGPJHC 62 (5 March 2019)

The court found that the plaintiff's proposed amendments, while containing correctable errors, sought to introduce an alternative cause of action based on a purported modification of the contract. The contract contained strict non-variation clauses requiring any modification to be in writing and signed by the defendant. The plaintiff failed to aver such a signature, rendering the proposed modification excipiable. Consequently, the amendments dependent on this averment could not be allowed. The court determined that the most effective approach was to disallow the notice of amendment in its entirety, permitting the plaintiff to file a fresh notice that avoids excipiability. Costs were...

Citation
[2019] ZAGPJHC 62
Parties
Applicant: Make Commodities (Pty) Ltd; Respondent: Afrisam (South Africa) (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
5 March 2019
Case Number
3071/2018
Procedural Posture
Interlocutory Application / Objection to Notice of Amendment; Interlocutory Ruling
Outcome
The plaintiff's notice of amendment is disallowed in its entirety. The plaintiff may file a further notice of amendment within 10 days if so advised. Costs are awarded against the plaintiff.
Judges
R Sutherland
Legal Topics
Amendment of Pleadings, Excipiability, Contract Modification, Non Variation Clauses
Civil Procedure Commercial and Corporate Amendment of Pleadings Excipiability Contract Modification Non Variation Clauses

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Make Commodities (Pty) Ltd

Applicant

Afrisam (South Africa) (Pty) Ltd

Respondent

Procedural Posture

Interlocutory Application / Objection to Notice of Amendment; Interlocutory Ruling

Legal Issues

  1. 1 Whether the plaintiff's proposed amendments to its particulars of claim should be allowed.
  2. 2 Whether the averment of a contract modification without the defendant's signature renders the claim excipiable.
  3. 3 Whether the plaintiff's notice of amendment is defective due to errors and misdescriptions.

Ratio Decidendi

The court found that the plaintiff's proposed amendments, while containing correctable errors, sought to introduce an alternative cause of action based on a purported modification of the contract. The contract contained strict non-variation clauses requiring any modification to be in writing and signed by the defendant. The plaintiff failed to aver such a signature, rendering the proposed modification excipiable. Consequently, the amendments dependent on this averment could not be allowed. The court determined that the most effective approach was to disallow the notice of amendment in its entirety, permitting the plaintiff to file a fresh notice that avoids excipiability. Costs were...

Court Disposition

The plaintiff's notice of amendment is disallowed in its entirety. The plaintiff may file a further notice of amendment within 10 days if so advised. Costs are awarded against the plaintiff.

Orders

  • The notice of amendment, in its entirety, is disallowed.
  • The plaintiff is granted leave to file a further notice of amendment, if so advised, within 10 days of the date of this judgment.