Mostert NO v Wip Capital (Pty) Ltd and Others (05/14894) [2008] ZAGPHC 472 (5 December 2008)

Mostert NO v Wip Capital (Pty) Ltd and Others (05/14894) [2008] ZAGPHC 472 (5 December 2008)

The court found that Rule 4.13 of the Fund's Rules could reasonably support the interpretation advanced by the second and third defendants, namely that the board may authorise the principal officer to sign contracts on behalf of the Fund. The plaintiff failed to demonstrate that the proposed amendment would render the plea excipiable or introduce a new issue for trial, as the interpretation of Rule 4.13 was already in dispute. The court also held that the absence of a tender for costs in the notice of amendment was not fatal, as Rule 28(9) imposes an obligation to pay costs unless the court orders otherwise. Accordingly, leave to amend was granted and costs were awarded against the...

Citation
[2008] ZAGPHC 472
Parties
Plaintiff: Anthony Louis Mostert N.O.; Defendant: Wip Capital (Pty) Ltd; Defendant: The Standard Bank of South Africa Limited; Defendant: SCMB Securities (Pty) Ltd; Defendant: SACCAWU Administration Company (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
5 December 2008
Case Number
05/14894
Procedural Posture
Civil Application / Application for Leave to Amend Plea
Outcome
Leave to amend the plea granted; costs awarded against the plaintiff.
Judges
Meyer
Legal Topics
Pleading Amendment, Interpretation of Pension Fund Rules, Authority to Contract, Costs Order
Civil Procedure Commercial and Corporate Pleading Amendment Interpretation of Pension Fund Rules Authority to Contract Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

Anthony Louis Mostert N.O.

Plaintiff

Wip Capital (Pty) Ltd

Defendant

The Standard Bank of South Africa Limited

Defendant

SCMB Securities (Pty) Ltd

Defendant

SACCAWU Administration Company (Pty) Ltd

Defendant

Procedural Posture

Civil Application / Application for Leave to Amend Plea

Legal Issues

  1. 1 Whether the proposed amendment to the plea introduces a valid defence or renders the plea vague and embarrassing.
  2. 2 Whether Rule 4.13 of the Fund's Rules permits delegation of authority to sign contracts.
  3. 3 Whether the absence of a tender for costs in the notice of amendment is fatal to the application.

Ratio Decidendi

The court found that Rule 4.13 of the Fund's Rules could reasonably support the interpretation advanced by the second and third defendants, namely that the board may authorise the principal officer to sign contracts on behalf of the Fund. The plaintiff failed to demonstrate that the proposed amendment would render the plea excipiable or introduce a new issue for trial, as the interpretation of Rule 4.13 was already in dispute. The court also held that the absence of a tender for costs in the notice of amendment was not fatal, as Rule 28(9) imposes an obligation to pay costs unless the court orders otherwise. Accordingly, leave to amend was granted and costs were awarded against the...

Court Disposition

Leave to amend the plea granted; costs awarded against the plaintiff.

Orders

  • The second and third defendants are given leave to amend their plea in accordance with their notice of amendment dated 22 January 2008.
  • The plaintiff is ordered to pay the second and third defendants’ costs of the application for leave to amend, including the costs attendant upon the employment of two counsel.