Tecmed (Pty) Ltd and Others v Sojitz Corporation (03/03539) [2011] ZAGPJHC 147 (26 October 2011)

Tecmed (Pty) Ltd and Others v Sojitz Corporation (03/03539) [2011] ZAGPJHC 147 (26 October 2011)

The court found that the defendants provided an adequate explanation for the delay in seeking amendment, and that the amendments raised triable issues, including the alleged oral variation of the distributorship agreement and implied contractual terms. The court held that any prejudice to the plaintiff could be remedied by an order for costs and that the issue of prescription should be determined at trial. The court further noted that if particulars are vague and embarrassing, the plaintiff may seek further particulars. The balance of the amendments relate to factual issues to be proved at trial. The court concluded that the amendments should be allowed and that the plaintiff's...

Citation
[2011] ZAGPJHC 147
Parties
Applicant: Tecmed (Pty) Limited; Applicant: Milford, Michael Voi Harry; Applicant: Begere, Werner; Applicant: Hurwitz, Barney; Applicant: Pule, Adrien; Respondent: Sojitz Corporation
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 October 2011
Case Number
03/03539
Procedural Posture
Civil Application / Application for Leave to Amend Plea and Counterclaims Prior to Trial
Outcome
Leave to amend granted; costs awarded to plaintiff.
Judges
Weiner
Legal Topics
Amendment of Pleadings, Triable Issue, Non Variation Clause, Prescription, Oral Agreement, Counterclaims
Civil Procedure Commercial and Corporate Amendment of Pleadings Triable Issue Non Variation Clause Prescription Oral Agreement Counterclaims

Case Brief

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Parties

Tecmed (Pty) Limited

Applicant

Milford, Michael Voi Harry

Applicant

Begere, Werner

Applicant

Hurwitz, Barney

Applicant

Pule, Adrien

Applicant

Sojitz Corporation

Respondent

Procedural Posture

Civil Application / Application for Leave to Amend Plea and Counterclaims Prior to Trial

Legal Issues

  1. 1 Whether the defendants should be granted leave to amend their plea and counterclaims.
  2. 2 Whether the delay in seeking amendment is adequately explained and justified.
  3. 3 Whether the proposed amendments introduce triable issues.

Ratio Decidendi

The court found that the defendants provided an adequate explanation for the delay in seeking amendment, and that the amendments raised triable issues, including the alleged oral variation of the distributorship agreement and implied contractual terms. The court held that any prejudice to the plaintiff could be remedied by an order for costs and that the issue of prescription should be determined at trial. The court further noted that if particulars are vague and embarrassing, the plaintiff may seek further particulars. The balance of the amendments relate to factual issues to be proved at trial. The court concluded that the amendments should be allowed and that the plaintiff's...

Court Disposition

Leave to amend granted; costs awarded to plaintiff.

Orders

  • The defendants are granted leave to amend their plea and the first defendant's counterclaims as set out in the Notice of Intention to Amend dated 7 February 2011.
  • The defendants are ordered to pay the plaintiff's costs of this application, jointly and severally, the one paying the others to be absolved.