Firstrand Bank Limited t/a Wesbank v Trustees for the Time Being of Lona Venter Familie Trust and Others (7472/2020) [2024] ZALMPPHC 194 (22 November 2024)

Firstrand Bank Limited t/a Wesbank v Trustees for the Time Being of Lona Venter Familie Trust and Others (7472/2020) [2024] ZALMPPHC 194 (22 November 2024)

The Court found no evidence of mala fides on the part of the Plaintiff in seeking the amendments. The omission of material facts in the original particulars of claim was an oversight, not malice. The amendments were necessary to enable proper ventilation of the dispute and would not prejudice the Defendants, who could still raise prescription as a defence. The amendments did not introduce a new cause of action but clarified the liability of the sureties, which was already contemplated in the original summons. Prescription was interrupted by service of summons, and the damages claim would only be determined after the return and valuation of the goods. The Court exercised its discretion to...

Citation
[2024] ZALMPPHC 194
Parties
Applicant: Firstrand Bank Limited t/a Wesbank; Respondent: Trustees for the Time Being of Lona Venter Familie Trust; Respondent: Elanie Nachtegaal Havenga N.O.; Respondent: Elanie Nachtegaal Havenga; Respondent: Ferreira Michiel Nel N.O.; Respondent: Ferreira Michiel Nel; Respondent: Lona Venter N.O.; Respondent: Lona Venter; Respondent: Leonard Venter N.O.; Respondent: Leonard Venter; Respondent: Rouan Venter N.O.; Respondent: Rouan Venter
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
22 November 2024
Case Number
7472/2020
Procedural Posture
Amendment Application / Application for Leave to Amend Particulars of Claim Under Rule 28(4)
Outcome
Application for leave to amend particulars of claim granted in respect of all three cases. No order as to costs.
Judges
KL Pillay
Legal Topics
Amendment of Pleadings, Suretyship Liability, Prescription Act, Rei Vindicatio, Breach of Contract
Civil Procedure Commercial and Corporate Amendment of Pleadings Suretyship Liability Prescription Act Rei Vindicatio Breach of Contract

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Parties

Firstrand Bank Limited t/a Wesbank

Applicant

Trustees for the Time Being of Lona Venter Familie Trust

Respondent

Elanie Nachtegaal Havenga N.O.

Respondent

Elanie Nachtegaal Havenga

Respondent

Ferreira Michiel Nel N.O.

Respondent

Ferreira Michiel Nel

Respondent

Lona Venter N.O.

Respondent

Lona Venter

Respondent

Leonard Venter N.O.

Respondent

Leonard Venter

Respondent

Rouan Venter N.O.

Respondent

Rouan Venter

Respondent

Procedural Posture

Amendment Application / Application for Leave to Amend Particulars of Claim Under Rule 28(4)

Legal Issues

  1. 1 Whether the application to amend by the Plaintiff was made in bad faith or would cause injustice to the Defendants.
  2. 2 Whether the amendments sought introduce new claims, resuscitating a prescribed deed of suretyship against the 7th, 9th, and 11th Defendants.
  3. 3 Whether the amendments would properly ventilate the real dispute between the parties.

Ratio Decidendi

The Court found no evidence of mala fides on the part of the Plaintiff in seeking the amendments. The omission of material facts in the original particulars of claim was an oversight, not malice. The amendments were necessary to enable proper ventilation of the dispute and would not prejudice the Defendants, who could still raise prescription as a defence. The amendments did not introduce a new cause of action but clarified the liability of the sureties, which was already contemplated in the original summons. Prescription was interrupted by service of summons, and the damages claim would only be determined after the return and valuation of the goods. The Court exercised its discretion to...

Court Disposition

Application for leave to amend particulars of claim granted in respect of all three cases. No order as to costs.

Orders

  • The application in terms of Rule 28 is granted.
  • The Plaintiff is to deliver the amended pages within 10 days of receipt of the Court Order.