Salligram and Others v Salligram and Others (AR 292/2018, 13560/2014) [2019] ZAKZPHC 63 (20 September 2019)

Salligram and Others v Salligram and Others (AR 292/2018, 13560/2014) [2019] ZAKZPHC 63 (20 September 2019)

The court held that the claim for re-cession of the Discovery life policy is a debt for purposes of the Prescription Act, as established by constitutional and appellate authority. The amendment sought by the appellants did not introduce a new debt but corrected the description of the agreement and date, with the underlying obligation remaining the same. The court found that the amendment related to substantially the same debt and that prescription should not be determined at the amendment stage unless it is common cause. The appeal was upheld, the refusal to amend was set aside, and the amendment to claim two was granted. Costs of the appeal were ordered to be borne by each party...

Citation
[2019] ZAKZPHC 63
Parties
Appellant: Heramoney Salligram; Appellant: Heramonry Salligram N.O.; Appellant: Rubendra Askran Bhagwandeen N.O.; Appellant: Narendra Kasieprasad Pattundeen N.O.; Respondent: Nalin Salligram; Respondent: Nalin Salligram N.O.; Respondent: Nirvana Salligram N.O.; Respondent: Shazel Investments CC; Respondent: The Commissioner: Companies & Intellectual Property Commission; Respondent: Preshilla Singh
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
20 September 2019
Case Number
AR 292/2018, 13560/2014
Procedural Posture
Civil Appeal / Appeal From Refusal of Amendment to Particulars of Claim; Full Court Hearing After Leave Granted by SCA
Outcome
Appeal upheld; amendment to claim two granted; costs of appeal to be borne individually.
Judges
Vahed, Mnguni, Steyn
Legal Topics
Amendment of Pleadings, Prescription Act, Trusts and Trustees, Oral Agreements
Civil Procedure Commercial and Corporate Amendment of Pleadings Prescription Act Trusts and Trustees Oral Agreements

Case Brief

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Parties

Heramoney Salligram

Appellant

Heramonry Salligram N.O.

Appellant

Rubendra Askran Bhagwandeen N.O.

Appellant

Narendra Kasieprasad Pattundeen N.O.

Appellant

Nalin Salligram

Respondent

Nalin Salligram N.O.

Respondent

Nirvana Salligram N.O.

Respondent

Shazel Investments CC

Respondent

The Commissioner: Companies & Intellectual Property Commission

Respondent

Preshilla Singh

Respondent

Procedural Posture

Civil Appeal / Appeal From Refusal of Amendment to Particulars of Claim; Full Court Hearing After Leave Granted by SCA

Legal Issues

  1. 1 Whether the claim for re-cession of the Discovery life policy constitutes a debt for purposes of the Prescription Act.
  2. 2 Whether the proposed amendment to claim two introduces substantially the same claim as the original particulars of claim.
  3. 3 Whether the issue of prescription should be determined at amendment stage or left for trial.

Ratio Decidendi

The court held that the claim for re-cession of the Discovery life policy is a debt for purposes of the Prescription Act, as established by constitutional and appellate authority. The amendment sought by the appellants did not introduce a new debt but corrected the description of the agreement and date, with the underlying obligation remaining the same. The court found that the amendment related to substantially the same debt and that prescription should not be determined at the amendment stage unless it is common cause. The appeal was upheld, the refusal to amend was set aside, and the amendment to claim two was granted. Costs of the appeal were ordered to be borne by each party...

Court Disposition

Appeal upheld; amendment to claim two granted; costs of appeal to be borne individually.

Orders

  • The appeal is upheld.
  • Paragraph 2(a) of the Order made by Kruger J on 8 September 2017 is set aside and replaced with: 'The Plaintiffs’ application for leave to amend as set out in paragraph 2 of the notice to amend is granted, and the application for leave to amend as set out in paragraphs 8, 9, 10 and 12 of the notice to amend is...