Sambit Holdings (Proprietary) Limited v Marais and Others (90194/15) [2019] ZAGPPHC 1086 (9 December 2019)

Sambit Holdings (Proprietary) Limited v Marais and Others (90194/15) [2019] ZAGPPHC 1086 (9 December 2019)

The court held that the plaintiff cannot cure its lack of locus standi at the time of issuing summons by amending the replication. The cession in securitatem debiti divested the plaintiff of the right to recover the debt, and only Absa Bank, as cessionary, could have instituted action prior to the recession. The amendment sought in replication is impermissible, as the cause of action must be set out in the particulars of claim, not in replication. The authorities relied upon by the plaintiff are distinguishable, as they pertain to amendments to the particulars of claim or substitution of plaintiffs, not to replication. The court further found that the failure to prosecute the amendment...

Citation
[2019] ZAGPPHC 1086
Parties
Plaintiff: Sambit Holdings (Proprietary) Limited; Defendant: Johan Marais; Defendant: Paul Mojapelo
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 December 2019
Case Number
90194/15
Procedural Posture
Civil Application / Application for Amendment of Replication Under Rule 28
Outcome
Application for amendment of replication dismissed with costs.
Judges
Avvakoumides
Legal Topics
Amendment of Pleadings, Cession in Securitatem Debiti, Locus Standi, Prescription Interruption, Suretyship, Condonation
Civil Procedure Commercial and Corporate Amendment of Pleadings Cession in Securitatem Debiti Locus Standi Prescription Interruption Suretyship Condonation

Case Brief

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Parties

Sambit Holdings (Proprietary) Limited

Plaintiff

Johan Marais

Defendant

Paul Mojapelo

Defendant

Procedural Posture

Civil Application / Application for Amendment of Replication Under Rule 28

Legal Issues

  1. 1 Whether the plaintiff is entitled to amend its replication after the cession of book debts and subsequent recession by the cessionary.
  2. 2 Whether the plaintiff had locus standi to institute action at the time summons was issued.
  3. 3 Whether the proposed amendment to the replication interrupts prescription under Section 15 of the Prescription Act.

Ratio Decidendi

The court held that the plaintiff cannot cure its lack of locus standi at the time of issuing summons by amending the replication. The cession in securitatem debiti divested the plaintiff of the right to recover the debt, and only Absa Bank, as cessionary, could have instituted action prior to the recession. The amendment sought in replication is impermissible, as the cause of action must be set out in the particulars of claim, not in replication. The authorities relied upon by the plaintiff are distinguishable, as they pertain to amendments to the particulars of claim or substitution of plaintiffs, not to replication. The court further found that the failure to prosecute the amendment...

Court Disposition

Application for amendment of replication dismissed with costs.

Orders

  • The plaintiff's application for amendment of replication is dismissed.
  • The plaintiff is ordered to pay the costs of the application.