Nampak Products t/a Nampak Liquid Purchasing v Dairybelle (Pty) Ltd (72512/13, 72513/13) [2016] ZAGPPHC 1159 (10 October 2016)

Nampak Products t/a Nampak Liquid Purchasing v Dairybelle (Pty) Ltd (72512/13, 72513/13) [2016] ZAGPPHC 1159 (10 October 2016)

The court held that the defendant's proposed amendments did not amount to a withdrawal of admissions that would prejudice the plaintiff, nor did they render the plea and counterclaim excipiable. The limitation of liability clauses in the written agreements did not preclude the defendant's counterclaim for damages based on intentional non-performance. The lateness of the notice of intention to amend was not a valid ground for refusal, as the plaintiff had agreed to a postponement and accepted a tender of costs. The amendments were found to be bona fide and necessary for the proper ventilation of the issues between the parties. Accordingly, leave to amend was granted with costs.

Citation
[2016] ZAGPPHC 1159
Parties
Plaintiff: Nampak Products t/a Nampak Liquid Purchasing; Defendant: Dairybelle (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 October 2016
Case Number
72512/13, 72513/13
Procedural Posture
Leave to Amend / Application for Leave to Amend Plea and Counterclaim Prior to Trial
Outcome
Leave to amend granted with costs to the defendant in both matters.
Judges
P.M. Mabuse
Legal Topics
Amendment of Pleadings, Withdrawal of Admissions, Contractual Liability Limitation, Exception to Pleadings
Civil Procedure Commercial and Corporate Amendment of Pleadings Withdrawal of Admissions Contractual Liability Limitation Exception to Pleadings

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Parties

Nampak Products t/a Nampak Liquid Purchasing

Plaintiff

Dairybelle (Pty) Ltd

Defendant

Procedural Posture

Leave to Amend / Application for Leave to Amend Plea and Counterclaim Prior to Trial

Legal Issues

  1. 1 Whether the defendant should be granted leave to amend its plea and counterclaim as set out in its notice of intention to amend.
  2. 2 Whether the proposed amendments amount to a withdrawal of admissions and, if so, whether such withdrawal is permissible without explanation.
  3. 3 Whether the amendments render the plea and counterclaim excipiable due to limitation of liability clauses in the written agreements.

Ratio Decidendi

The court held that the defendant's proposed amendments did not amount to a withdrawal of admissions that would prejudice the plaintiff, nor did they render the plea and counterclaim excipiable. The limitation of liability clauses in the written agreements did not preclude the defendant's counterclaim for damages based on intentional non-performance. The lateness of the notice of intention to amend was not a valid ground for refusal, as the plaintiff had agreed to a postponement and accepted a tender of costs. The amendments were found to be bona fide and necessary for the proper ventilation of the issues between the parties. Accordingly, leave to amend was granted with costs.

Court Disposition

Leave to amend granted with costs to the defendant in both matters.

Orders

  • Leave is granted to the defendant in case numbers 72512/13 and 72513/13 to amend its plea and counterclaim as set out in its notice of intention to amend dated 3 December 2015.
  • The plaintiff is ordered to pay the costs of the application.