Makoba v Van Tonder (408/2001) [2001] ZAECHC 1 (1 January 2001)

Makoba v Van Tonder (408/2001) [2001] ZAECHC 1 (1 January 2001)

The court held that the joinder of Mrs. Makoba as second defendant and the amendment to the particulars of claim merely corrected a misdescription of the executor of the deceased estate and did not constitute the substitution of a new defendant. The action was always intended against the representative of the estate, and no prejudice was occasioned to the appellant by the correction. Furthermore, the court found that the plaintiff, armed with the formal communication from Legatus Trust, acted reasonably and was not required to make further inquiries into the identity of the executor. The appellant failed to discharge the onus of establishing her special plea of prescription, and the...

Citation
[2001] ZAECHC 1
Parties
Appellant: M. Makoba; Respondent: J.J. Van Tonder
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
1 January 2001
Case Number
408/2001
Procedural Posture
Civil Appeal / Appeal Against Magistrate's Dismissal of Special Plea of Prescription
Outcome
Appeal dismissed with costs.
Judges
JW Pickering, N Goso
Legal Topics
Prescription Act, Misdescription of Parties, Joinder of Parties, Reasonable Care in Ascertainment, Special Plea of Prescription
Civil Procedure Prescription Act Misdescription of Parties Joinder of Parties Reasonable Care in Ascertainment Special Plea of Prescription

Case Brief

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Parties

M. Makoba

Appellant

J.J. Van Tonder

Respondent

Procedural Posture

Civil Appeal / Appeal Against Magistrate's Dismissal of Special Plea of Prescription

Legal Issues

  1. 1 Whether the joinder of Mrs. Makoba as second defendant constituted the institution of a new cause of action that had prescribed.
  2. 2 Whether the amendment to the particulars of claim to substitute the correct executor was a misdescription or a substitution of parties.
  3. 3 Whether the plaintiff exercised reasonable care in ascertaining the identity of the correct executor for purposes of prescription under s 12(3) of the Prescription Act.

Ratio Decidendi

The court held that the joinder of Mrs. Makoba as second defendant and the amendment to the particulars of claim merely corrected a misdescription of the executor of the deceased estate and did not constitute the substitution of a new defendant. The action was always intended against the representative of the estate, and no prejudice was occasioned to the appellant by the correction. Furthermore, the court found that the plaintiff, armed with the formal communication from Legatus Trust, acted reasonably and was not required to make further inquiries into the identity of the executor. The appellant failed to discharge the onus of establishing her special plea of prescription, and the...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.