Pienaar and Another v Cowens and Another (11933/2020) [2025] ZAWCHC 334 (5 August 2025)

Pienaar and Another v Cowens and Another (11933/2020) [2025] ZAWCHC 334 (5 August 2025)

The court found that the proposed amendment sought to introduce a new cause of action based on fraudulent misrepresentation, which is distinct from the original claim under the Consumer Protection Act. The plaintiffs were aware of this cause of action in 2018 but chose not to pursue it in their particulars of claim. The new claim is now prescribed under section 12(d) of the Prescription Act. The amendment would result in prejudice to the defendants, particularly as the key witness is deceased and the parties cannot be restored to their original positions. The application was not made bona fide and would cause injustice. Accordingly, the court dismissed the application for leave to amend.

Citation
[2025] ZAWCHC 334
Parties
Plaintiff: Antone Pienaar (nee Van Heerden); Plaintiff: Schalk Willem Pienaar; Defendant: Leigh Cowens; Defendant: Pam Golding Properties (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 August 2025
Case Number
11933/2020
Procedural Posture
Interlocutory Application / Application for Leave to Amend Particulars of Claim Under Rule 28(4)
Outcome
Application for leave to amend dismissed with costs.
Judges
Mapoma
Legal Topics
Amendment of Pleadings, Prescription Act, Fraudulent Misrepresentation, Consumer Protection Act, Prejudice in Amendment, Costs of Amendment
Civil Procedure Land and Property Amendment of Pleadings Prescription Act Fraudulent Misrepresentation Consumer Protection Act Prejudice in Amendment Costs of Amendment

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Parties

Antone Pienaar (nee Van Heerden)

Plaintiff

Schalk Willem Pienaar

Plaintiff

Leigh Cowens

Defendant

Pam Golding Properties (Pty) Ltd

Defendant

Procedural Posture

Interlocutory Application / Application for Leave to Amend Particulars of Claim Under Rule 28(4)

Legal Issues

  1. 1 Whether the proposed amendment introduces a new cause of action that is prescribed.
  2. 2 Whether the amendment would result in prejudice and injustice to the defendants.
  3. 3 Whether the plaintiffs are entitled to amend their particulars of claim at this stage.

Ratio Decidendi

The court found that the proposed amendment sought to introduce a new cause of action based on fraudulent misrepresentation, which is distinct from the original claim under the Consumer Protection Act. The plaintiffs were aware of this cause of action in 2018 but chose not to pursue it in their particulars of claim. The new claim is now prescribed under section 12(d) of the Prescription Act. The amendment would result in prejudice to the defendants, particularly as the key witness is deceased and the parties cannot be restored to their original positions. The application was not made bona fide and would cause injustice. Accordingly, the court dismissed the application for leave to amend.

Court Disposition

Application for leave to amend dismissed with costs.

Orders

  • The application for leave to amend is dismissed.
  • The plaintiffs shall pay costs of the application for leave to amend on the High Court Scale B in favour of the second defendant.