R.T.W (born H) v G.J.W (2666/2016) [2016] ZAECGHC 73 (8 September 2016)

R.T.W (born H) v G.J.W (2666/2016) [2016] ZAECGHC 73 (8 September 2016)

The court held that the objection to the applicant's amendment was without merit. It is established law that an agreement made an order of court may be set aside or give rise to a claim for damages if induced by fraud, and such a claim is not limited to setting aside the entire agreement. The applicant's proposed amendment, seeking to set aside only the proprietary clauses and to recalculate the accrual, is competent in law and not excipiable. The objection, which argued that only the entire agreement could be set aside, was incorrect. The court allowed the amendment, noting that the claim is rooted in contract or delict and that the relief sought is properly pleaded. Costs were awarded...

Citation
[2016] ZAECGHC 73
Parties
Applicant: R T W (born H); Respondent: G J W
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
8 September 2016
Case Number
2666/2016
Procedural Posture
Civil Application / Application to Amend Particulars of Claim
Outcome
Amendment granted; costs awarded as specified.
Judges
M.J Lowe
Legal Topics
Amendment of Pleadings, Fraudulent Misrepresentation, Matrimonial Property Act, Accrual System, Delictual Damages
Civil Procedure Family and Children Amendment of Pleadings Fraudulent Misrepresentation Matrimonial Property Act Accrual System Delictual Damages

Case Brief

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Parties

R T W (born H)

Applicant

G J W

Respondent

Procedural Posture

Civil Application / Application to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the applicant may amend her particulars of claim to introduce a new claim based on alleged fraudulent misrepresentation regarding ownership of the farm transferred in the divorce settlement.
  2. 2 Whether the relief sought is competent in law, specifically whether the applicant may set aside only certain proprietary clauses of the settlement agreement rather than the entire agreement.
  3. 3 Whether the objection to the amendment renders the new claim excipiable.

Ratio Decidendi

The court held that the objection to the applicant's amendment was without merit. It is established law that an agreement made an order of court may be set aside or give rise to a claim for damages if induced by fraud, and such a claim is not limited to setting aside the entire agreement. The applicant's proposed amendment, seeking to set aside only the proprietary clauses and to recalculate the accrual, is competent in law and not excipiable. The objection, which argued that only the entire agreement could be set aside, was incorrect. The court allowed the amendment, noting that the claim is rooted in contract or delict and that the relief sought is properly pleaded. Costs were awarded...

Court Disposition

Amendment granted; costs awarded as specified.

Orders

  • Applicant is granted leave to amend her particulars of claim in accordance with the Notice of Intention to Amend dated 30 May 2016.
  • Applicant is to pay respondent's costs occasioned by the Notice of Intention to Amend on an unopposed basis.