Mamokhuthu Group Development CC v Cas Dry Attorneys and Others (919/2020) [2021] ZAMPMHC 40 (5 March 2021)

Mamokhuthu Group Development CC v Cas Dry Attorneys and Others (919/2020) [2021] ZAMPMHC 40 (5 March 2021)

The court found that the proposed amendment to the citation of the first respondent does not constitute a substitution of parties but merely elaborates on the existing citation. The first respondent remains the same incorporated entity and retains all remedies available in pleading to the claim. The objections raised by the first and second respondents do not render the particulars of claim excipiable, as the liability of the first respondent for debts incurred prior to incorporation is a triable issue to be determined during the action. The inclusion of joint and several liability in the prayers does not automatically make the pleadings excipiable and may be disregarded if unsupported by...

Citation
[2021] ZAMPMHC 40
Parties
Applicant: Mamokhuthu Group Development CC; Respondent: Cas Dry Attorneys Inc; Respondent: Barend Maritz Dry; Respondent: NAD Property Income Fund (Pty) Ltd; Respondent: Bush Buck Ridge Local Municipality
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
5 March 2021
Case Number
919/2020
Procedural Posture
Amendment Application / Application for Leave to Amend Particulars of Claim Prior to Plea
Outcome
Leave to amend granted; no order as to costs.
Judges
Greyling-Coetzer
Legal Topics
Amendment of Pleadings, Excipiability, Misnomer, Joint and Several Liability
Civil Procedure Amendment of Pleadings Excipiability Misnomer Joint and Several Liability

Case Brief

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Parties

Mamokhuthu Group Development CC

Applicant

Cas Dry Attorneys Inc

Respondent

Barend Maritz Dry

Respondent

NAD Property Income Fund (Pty) Ltd

Respondent

Bush Buck Ridge Local Municipality

Respondent

Procedural Posture

Amendment Application / Application for Leave to Amend Particulars of Claim Prior to Plea

Legal Issues

  1. 1 Whether the applicant should be granted leave to amend its particulars of claim and summons.
  2. 2 Whether the proposed amendments render the particulars of claim excipiable for failing to disclose a cause of action.
  3. 3 Whether the amendment to the citation of the first respondent constitutes a substitution of parties.

Ratio Decidendi

The court found that the proposed amendment to the citation of the first respondent does not constitute a substitution of parties but merely elaborates on the existing citation. The first respondent remains the same incorporated entity and retains all remedies available in pleading to the claim. The objections raised by the first and second respondents do not render the particulars of claim excipiable, as the liability of the first respondent for debts incurred prior to incorporation is a triable issue to be determined during the action. The inclusion of joint and several liability in the prayers does not automatically make the pleadings excipiable and may be disregarded if unsupported by...

Court Disposition

Leave to amend granted; no order as to costs.

Orders

  • The applicant is granted leave to amend its summons and particulars of claim as per the notice of amendment dated 9 June 2020.
  • No order as to cost.