Tecmed (Pty) Limited and Others v Nissho Iwai Corporation and Another (705/08) [2009] ZASCA 143; [2010] 3 All SA 36 (SCA) ; 2011 (1) SA 35 (SCA) (25 November 2009)

Tecmed (Pty) Limited and Others v Nissho Iwai Corporation and Another (705/08) [2009] ZASCA 143; [2010] 3 All SA 36 (SCA) ; 2011 (1) SA 35 (SCA) (25 November 2009)

The Supreme Court of Appeal held that Sojitz Corporation succeeded to all rights and obligations of Nissho Iwai Corporation by operation of Japanese law following a merger. This universal succession is analogous to statutory amalgamations under South African law, where the successor steps into the shoes of the...

Source-derived case information.

Citation
[2009] ZASCA 143
Parties
Appellant: Tecmed (Pty) Limited; Appellant: Michael Voi Harry Milford; Appellant: Werner Begeré; Appellant: Barney Hurwitz; Appellant: Adrien Pule; Respondent: Nissho Iwai Corporation; Respondent: Sojitz Corporation
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 November 2009
Case Number
705/08
Procedural Posture
Civil Appeal / Appeal From Interlocutory Applications in the Johannesburg High Court
Outcome
Appeal dismissed with costs, including costs occasioned by employment of two counsel.
Judges
Harms, Brand, Malan
Legal Topics
Substitution of Parties, Universal Succession, Prescription Act, Merger Under Foreign Law, Suretyship Liability
Civil Procedure Commercial and Corporate Substitution of Parties Universal Succession Prescription Act Merger Under Foreign Law Suretyship Liability

Source-derived case record

Summary, issues, holding and outcome

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Parties

Tecmed (Pty) Limited

Appellant

Michael Voi Harry Milford

Appellant

Werner Begeré

Appellant

Barney Hurwitz

Appellant

Adrien Pule

Appellant

Nissho Iwai Corporation

Respondent

Sojitz Corporation

Respondent

Procedural Posture

Civil Appeal / Appeal From Interlocutory Applications in the Johannesburg High Court

Legal Issues

  1. 1 Whether Sojitz Corporation could be substituted for Nissho Iwai Corporation as plaintiff by operation of Japanese law.
  2. 2 Whether the Rule 15 notice was valid and effective for substitution of parties.
  3. 3 Whether the substitution application was a nullity due to being brought by a non-existent entity.

Ratio Decidendi

The Supreme Court of Appeal held that Sojitz Corporation succeeded to all rights and obligations of Nissho Iwai Corporation by operation of Japanese law following a merger. This universal succession is analogous to statutory amalgamations under South African law, where the successor steps into the shoes of the predecessor and the plaintiff remains the same entity for procedural purposes. The formal substitution of Sojitz as plaintiff does not constitute the institution of new proceedings and does not activate s 15(2) of the Prescription Act. The substitution application, properly interpreted, was brought by Sojitz and not by a non-existent entity. No prejudice to the defendants was...

Court Disposition

Appeal dismissed with costs, including costs occasioned by employment of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs occasioned by the employment of two counsel.