Pintado Trading 800 (Pty) Ltd v Fleet Africa (Pty) Ltd (5866/2009) [2010] ZAKZDHC 22 (1 June 2010)

Pintado Trading 800 (Pty) Ltd v Fleet Africa (Pty) Ltd (5866/2009) [2010] ZAKZDHC 22 (1 June 2010)

The court found that the plaintiffs' intention to form a partnership was evident from the MOU, and that the amendment sought merely reinstated terms already present in the MOU. The court held that the defendants had not demonstrated that the amendment would clearly render the pleadings excipiable. Since it was arguable whether the amendment would render the pleadings excipiable, the amendment should be allowed. The court exercised its discretion to grant the amendment, subject to the plaintiffs paying the defendants' wasted costs occasioned by the application, to cure any prejudice suffered.

Citation
[2010] ZAKZDHC 22
Parties
Plaintiff: Pintado Trading 800 (Pty) Limited; Defendant: Fleet Africa (Pty) Limited
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
1 June 2010
Case Number
5866/2009
Procedural Posture
Amendment Application / Application for Leave to Amend Particulars of Claim Under Rule 28
Outcome
Application to amend granted; costs awarded against the plaintiffs.
Judges
Hughes-Madondo
Legal Topics
Amendment of Pleadings, Fiduciary Relationship, Partnership, Exception Procedure
Civil Procedure Commercial and Corporate Amendment of Pleadings Fiduciary Relationship Partnership Exception Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Pintado Trading 800 (Pty) Limited

Plaintiff

Fleet Africa (Pty) Limited

Defendant

Procedural Posture

Amendment Application / Application for Leave to Amend Particulars of Claim Under Rule 28

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to amend its particulars of claim under Rule 28.
  2. 2 Whether the proposed amendment would render the pleadings excipiable as vague, embarrassing, or failing to disclose a cause of action.
  3. 3 Whether the amendment would cause prejudice to the defendant that cannot be cured by a costs order.

Ratio Decidendi

The court found that the plaintiffs' intention to form a partnership was evident from the MOU, and that the amendment sought merely reinstated terms already present in the MOU. The court held that the defendants had not demonstrated that the amendment would clearly render the pleadings excipiable. Since it was arguable whether the amendment would render the pleadings excipiable, the amendment should be allowed. The court exercised its discretion to grant the amendment, subject to the plaintiffs paying the defendants' wasted costs occasioned by the application, to cure any prejudice suffered.

Court Disposition

Application to amend granted; costs awarded against the plaintiffs.

Orders

  • The application to amend is granted.
  • The amendment is to be effected within 10 days from the date of this order.