Techmach Technology (Pty) Ltd v Grikwaland-Wes Korporatief Ltd (2950/2018) [2020] ZANCHC 55 (31 July 2020)

Techmach Technology (Pty) Ltd v Grikwaland-Wes Korporatief Ltd (2950/2018) [2020] ZANCHC 55 (31 July 2020)

The court found that the citation of Grikwaland-Wes Korporatief Ltd instead of GWK Farm Foods (Pty) Ltd was a misdescription and not a substitution of parties. The intention of the plaintiff was always to sue the successor in title to Westra, now GWK Farm Foods, with whom the contractual relationship existed. The summons and particulars of claim were served at the principal place of business of GWK Farm Foods and accepted by its company secretary, who held positions in both companies. GWK Farm Foods was aware of the impending action and suffered no prejudice. The service of the original summons interrupted the running of prescription against GWK Farm Foods. The amendment was sought...

Citation
[2020] ZANCHC 55
Parties
Applicant: Techmach Technology (Pty) Ltd; Respondent: Grikwaland-Wes Korporatief Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
31 July 2020
Case Number
2950/2018
Procedural Posture
Civil Application / Application for Amendment of Summons and Particulars of Claim Under Rule 28
Outcome
Leave to amend the summons and particulars of claim is granted. The plaintiff is ordered to pay the wasted costs occasioned by the amendment and all costs of the application, including those occasioned by the defendant's opposition.
Judges
Phatshoane
Legal Topics
Amendment of Pleadings, Misdescription of Party, Prescription Interruption, Contractual Debt
Civil Procedure Commercial and Corporate Amendment of Pleadings Misdescription of Party Prescription Interruption Contractual Debt

Case Brief

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Parties

Techmach Technology (Pty) Ltd

Applicant

Grikwaland-Wes Korporatief Ltd

Respondent

Procedural Posture

Civil Application / Application for Amendment of Summons and Particulars of Claim Under Rule 28

Legal Issues

  1. 1 Whether the amendment sought by the plaintiff amounts to a correction of a misdescription of a party or an impermissible substitution of one party for another.
  2. 2 Whether the service of the unamended summons and particulars of claim interrupted the running of prescription against the correct defendant.
  3. 3 Whether any prejudice would be suffered by the defendant or the prospective defendant as a result of the amendment.

Ratio Decidendi

The court found that the citation of Grikwaland-Wes Korporatief Ltd instead of GWK Farm Foods (Pty) Ltd was a misdescription and not a substitution of parties. The intention of the plaintiff was always to sue the successor in title to Westra, now GWK Farm Foods, with whom the contractual relationship existed. The summons and particulars of claim were served at the principal place of business of GWK Farm Foods and accepted by its company secretary, who held positions in both companies. GWK Farm Foods was aware of the impending action and suffered no prejudice. The service of the original summons interrupted the running of prescription against GWK Farm Foods. The amendment was sought...

Court Disposition

Leave to amend the summons and particulars of claim is granted. The plaintiff is ordered to pay the wasted costs occasioned by the amendment and all costs of the application, including those occasioned by the defendant's opposition.

Orders

  • Leave is granted to Techmach Technology (Pty) Ltd to amend its summons and particulars of claim in accordance with its notice to amend in terms of Rule 28 served on Griekwaland-Wes Korporatief Ltd and filed with this Court on 24 April 2019.
  • The plaintiff is to pay the wasted costs occasioned by this amendment.