Swarts v Ixia Trading 48 (Edms) Bpk and Another In re: Ixia Trading 48 (Edms) Bpk and Another v Swarts (9359/2003) [2006] ZAGPHC 178 (26 April 2006)

Swarts v Ixia Trading 48 (Edms) Bpk and Another In re: Ixia Trading 48 (Edms) Bpk and Another v Swarts (9359/2003) [2006] ZAGPHC 178 (26 April 2006)

The court held that the defendant's amendment to the notice of exception was technical and did not prejudice the plaintiffs, and that the omission of a costs tender in the notice was an oversight not amounting to an irregularity. The court exercised its discretion to grant the amendment and determined the costs consequences accordingly. On the merits, the court found that the defendant, although a foreign peregrinus, had submitted to the jurisdiction of the South African court by entering into a shareholders agreement with a South African company and participating in business governed by South African law. This submission was sufficient to confer jurisdiction, and the exception was...

Citation
[2006] ZAGPHC 178
Parties
Applicant: Gert Coetzee Swarts; Respondent: Ixia Trading 48 (Edms) Bpk; Respondent: Petrus Johannes Victor
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
26 April 2006
Case Number
9359/2003
Procedural Posture
Exception Application / Exception Hearing and Application for Amendment
Outcome
The defendant's exception is dismissed with costs. The amendment to the notice of exception is granted, with costs apportioned as specified. Each party is to bear its own costs for 3 August 2005.
Judges
E M Patel
Legal Topics
Jurisdiction of High Court, Amendment of Pleadings, Costs Orders, Exception Procedure
Civil Procedure Jurisdiction of High Court Amendment of Pleadings Costs Orders Exception Procedure

Case Brief

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Parties

Gert Coetzee Swarts

Applicant

Ixia Trading 48 (Edms) Bpk

Respondent

Petrus Johannes Victor

Respondent

Procedural Posture

Exception Application / Exception Hearing and Application for Amendment

Legal Issues

  1. 1 Whether the defendant may amend the notice of exception and the costs consequences thereof.
  2. 2 Whether the exception to the plaintiffs' amended particulars of claim discloses no cause of action due to lack of jurisdiction.
  3. 3 Who should bear the reserved costs of 3 August 2005.

Ratio Decidendi

The court held that the defendant's amendment to the notice of exception was technical and did not prejudice the plaintiffs, and that the omission of a costs tender in the notice was an oversight not amounting to an irregularity. The court exercised its discretion to grant the amendment and determined the costs consequences accordingly. On the merits, the court found that the defendant, although a foreign peregrinus, had submitted to the jurisdiction of the South African court by entering into a shareholders agreement with a South African company and participating in business governed by South African law. This submission was sufficient to confer jurisdiction, and the exception was...

Court Disposition

The defendant's exception is dismissed with costs. The amendment to the notice of exception is granted, with costs apportioned as specified. Each party is to bear its own costs for 3 August 2005.

Orders

  • Leave is granted to the defendant to amend his notice of exception.
  • The defendant is to pay the wasted costs of the amendment on the basis of an unopposed application.