S v S 'n ander; In re: S v S (347/2015) [2016] ZAFSHC 1 (20 January 2016)

S v S 'n ander; In re: S v S (347/2015) [2016] ZAFSHC 1 (20 January 2016)

The court found that the company DJ S. Boerdery (Edms) Bpk has a direct and substantial interest in the outcome of the dispute, particularly if the Gottenburg property is found to be a partnership asset. Refusing joinder could result in injustice, as the company would not be bound by any order regarding the property if not a party. The court exercised its discretion to grant joinder, noting that any issues with the pleadings could be addressed by allowing amendments and that the company would retain the right to raise exceptions. The interest of the trust as shareholder was found insufficient to warrant its joinder, as the company is a separate legal entity.

Citation
[2016] ZAFSHC 1
Parties
Applicant: A. E. S.; Respondent: D. J. S.; Respondent: DJ S. Boerdery (Edms) Bpk
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
20 January 2016
Case Number
347/2015
Procedural Posture
Civil Application / Joinder Application Prior to Trial
Outcome
Joinder of the company as a party to the counterclaim granted; applicant permitted to amend pleadings; costs to be costs in the cause.
Judges
Reinders, R
Legal Topics
Joinder of Parties, Partnership Dispute, Company Law, Amendment of Pleadings
Civil Procedure Commercial and Corporate Joinder of Parties Partnership Dispute Company Law Amendment of Pleadings

Case Brief

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Parties

A. E. S.

Applicant

D. J. S.

Respondent

DJ S. Boerdery (Edms) Bpk

Respondent

Procedural Posture

Civil Application / Joinder Application Prior to Trial

Legal Issues

  1. 1 Whether the company DJ S. Boerdery (Edms) Bpk should be joined as a party to the main action.
  2. 2 Whether the company has a direct and substantial interest in the outcome of the dispute regarding the alleged partnership and the Gottenburg property.
  3. 3 Whether the applicant should be permitted to amend her counterclaim after joinder.

Ratio Decidendi

The court found that the company DJ S. Boerdery (Edms) Bpk has a direct and substantial interest in the outcome of the dispute, particularly if the Gottenburg property is found to be a partnership asset. Refusing joinder could result in injustice, as the company would not be bound by any order regarding the property if not a party. The court exercised its discretion to grant joinder, noting that any issues with the pleadings could be addressed by allowing amendments and that the company would retain the right to raise exceptions. The interest of the trust as shareholder was found insufficient to warrant its joinder, as the company is a separate legal entity.

Court Disposition

Joinder of the company as a party to the counterclaim granted; applicant permitted to amend pleadings; costs to be costs in the cause.

Orders

  • The Second Respondent is joined as the Second Defendant in the counterclaim in case number 347/2015.
  • The applicant (defendant in the main action) must amend and deliver the counterclaim in accordance with the Notice of Intended Amendment within 5 days of this order.