Tjeka Training Matters (Pty) Ltd v A S Nonyane and Associates Inc (11151/2011) [2015] ZAGPPHC 134 (5 March 2015)

Tjeka Training Matters (Pty) Ltd v A S Nonyane and Associates Inc (11151/2011) [2015] ZAGPPHC 134 (5 March 2015)

The court held that the applicant's proposed amendment does not introduce a fundamentally new cause of action, as the respondent was aware from the outset that the claim included payment for services rendered in the Motheo project. The applicant still bears the burden of proving the existence of the part-written, part-oral agreement. The respondent will not suffer prejudice that cannot be cured by a costs order. The issue of prescription is disputed and should be determined at trial, not at the amendment stage. The applicant has shown sufficient cause for the amendment, and the application is granted. Costs are awarded against the applicant as the party seeking the indulgence.

Citation
[2015] ZAGPPHC 134
Parties
Applicant: Tjeka Training Matters (Pty) Ltd; Respondent: A S Nonyane and Associates Inc
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 March 2015
Case Number
11151/2011
Procedural Posture
Amendment Application / Application for Leave to Amend Particulars of Claim Prior to Trial
Outcome
Application for leave to amend particulars of claim granted. Costs awarded against the applicant.
Judges
Mngqibisa-Thusi
Legal Topics
Amendment of Pleadings, Prescription, Service Level Agreement, Non Variation Clause, Contractual Dispute
Civil Procedure Commercial and Corporate Amendment of Pleadings Prescription Service Level Agreement Non Variation Clause Contractual Dispute

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Parties

Tjeka Training Matters (Pty) Ltd

Applicant

A S Nonyane and Associates Inc

Respondent

Procedural Posture

Amendment Application / Application for Leave to Amend Particulars of Claim Prior to Trial

Legal Issues

  1. 1 Whether the applicant should be granted leave to amend its particulars of claim to introduce a claim based on a part-written, part-oral agreement for services rendered in the Motheo District.
  2. 2 Whether the proposed amendment introduces a new cause of action that has prescribed.
  3. 3 Whether the respondent will suffer prejudice if the amendment is allowed.

Ratio Decidendi

The court held that the applicant's proposed amendment does not introduce a fundamentally new cause of action, as the respondent was aware from the outset that the claim included payment for services rendered in the Motheo project. The applicant still bears the burden of proving the existence of the part-written, part-oral agreement. The respondent will not suffer prejudice that cannot be cured by a costs order. The issue of prescription is disputed and should be determined at trial, not at the amendment stage. The applicant has shown sufficient cause for the amendment, and the application is granted. Costs are awarded against the applicant as the party seeking the indulgence.

Court Disposition

Application for leave to amend particulars of claim granted. Costs awarded against the applicant.

Orders

  • The applicant is granted leave to amend its particulars of claim in accordance with its Notice of Intention to Amend in terms of Rule 28(1) dated 24 October 2013.
  • The applicant to pay the costs occasioned by the amendment.