Mano and Another v Rutsane and Another (29323/2012) [2017] ZAGPJHC 466 (8 September 2017)

Mano and Another v Rutsane and Another (29323/2012) [2017] ZAGPJHC 466 (8 September 2017)

The court found that the plaintiffs are entitled to amend their particulars of claim to reflect a change of election from specific performance to damages, as the defendants persisted in repudiation by selling the property to a third party. The contradiction in the pleadings regarding who signed the amended agreement was deemed vague and embarrassing, but not prejudicial, as the defendants could still plead to the allegations. The court confirmed that the repentance principle is part of South African law and applies to all cases of repudiation, allowing the innocent party to change its election when the defaulting party persists in breach. Accordingly, the amendment was granted with costs.

Citation
[2017] ZAGPJHC 466
Parties
Applicant: Abel Mano; Applicant: Lerato Prosperity Mano; Respondent: Tivhilaheli Rutsane; Respondent: Blose Properties CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 September 2017
Case Number
29323/2012
Procedural Posture
Civil Application / Application to Amend Pleadings Under Rule 28
Outcome
Application to amend particulars of claim granted with costs.
Judges
Windell
Legal Topics
Amendment of Pleadings, Repudiation, Specific Performance, Damages for Breach of Contract
Civil Procedure Land and Property Amendment of Pleadings Repudiation Specific Performance Damages for Breach of Contract

Case Brief

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Parties

Abel Mano

Applicant

Lerato Prosperity Mano

Applicant

Tivhilaheli Rutsane

Respondent

Blose Properties CC

Respondent

Procedural Posture

Civil Application / Application to Amend Pleadings Under Rule 28

Legal Issues

  1. 1 Whether the plaintiffs may amend their particulars of claim to reflect a change of election from specific performance to damages after the property was sold to a third party.
  2. 2 Whether the proposed amendment renders the declaration vague and embarrassing or fails to disclose a cause of action.
  3. 3 Whether the 'repentance principle' applies, allowing the plaintiffs to change their election after the defendants persisted in repudiation.

Ratio Decidendi

The court found that the plaintiffs are entitled to amend their particulars of claim to reflect a change of election from specific performance to damages, as the defendants persisted in repudiation by selling the property to a third party. The contradiction in the pleadings regarding who signed the amended agreement was deemed vague and embarrassing, but not prejudicial, as the defendants could still plead to the allegations. The court confirmed that the repentance principle is part of South African law and applies to all cases of repudiation, allowing the innocent party to change its election when the defaulting party persists in breach. Accordingly, the amendment was granted with costs.

Court Disposition

Application to amend particulars of claim granted with costs.

Orders

  • The amendment is granted with costs.