Refine Underwriting Managers (Pty) Ltd v Van Zyl and Others (45827/2009) [2014] ZAGPPHC 196 (14 March 2014)

Refine Underwriting Managers (Pty) Ltd v Van Zyl and Others (45827/2009) [2014] ZAGPPHC 196 (14 March 2014)

The court found that the proposed amendments to the particulars of claim do not introduce a new or different cause of action, but rather clarify and expand upon the original claim. The terms relied upon in the amendments are essentially the same as those pleaded in the original particulars, and the right of action remains substantially the same. The running of prescription is therefore interrupted. The objections regarding the absence of annexures are unfounded, as the relevant documents have already been discovered. The amendment does not withdraw any factual admission regarding compliance with the National Credit Act, and the respondents remain free to raise any defence under the Act....

Citation
[2014] ZAGPPHC 196
Parties
Applicant: Refine Underwriting Managers (Pty) Ltd; Respondent: Jacobus Henricus Van Zyl; Respondent: Maria Elizabeth Van Zyl; Respondent: Yellow Star Properties 160 CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 March 2014
Case Number
45827/2009
Procedural Posture
Civil Application / Application for Leave to Amend Particulars of Claim Under Rule 28(4)
Outcome
Application for leave to amend particulars of claim granted. Costs awarded against the third respondent.
Judges
Murphy
Legal Topics
Amendment of Pleadings, Suretyship, National Credit Act, Summary Judgment, Prescription, Costs Order
Civil Procedure Commercial and Corporate Amendment of Pleadings Suretyship National Credit Act Summary Judgment Prescription Costs Order

Case Brief

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Parties

Refine Underwriting Managers (Pty) Ltd

Applicant

Jacobus Henricus Van Zyl

Respondent

Maria Elizabeth Van Zyl

Respondent

Yellow Star Properties 160 CC

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the applicant should be granted leave to amend its particulars of claim under Rule 28(4).
  2. 2 Whether the proposed amendments introduce a new cause of action or prejudice the respondents.
  3. 3 Whether the amendments affect the respondents' defences under the National Credit Act.

Ratio Decidendi

The court found that the proposed amendments to the particulars of claim do not introduce a new or different cause of action, but rather clarify and expand upon the original claim. The terms relied upon in the amendments are essentially the same as those pleaded in the original particulars, and the right of action remains substantially the same. The running of prescription is therefore interrupted. The objections regarding the absence of annexures are unfounded, as the relevant documents have already been discovered. The amendment does not withdraw any factual admission regarding compliance with the National Credit Act, and the respondents remain free to raise any defence under the Act....

Court Disposition

Application for leave to amend particulars of claim granted. Costs awarded against the third respondent.

Orders

  • The applicant is granted leave to amend its particulars in the manner set out in its application in terms of Rule 28(4).
  • The third respondent is ordered to pay the costs of the application.