Unterslak and Another v Macsteel Holdings (Pty) Ltd [2005] ZAGPHC 373; 25533/04 (17 August 2005)

Unterslak and Another v Macsteel Holdings (Pty) Ltd [2005] ZAGPHC 373; 25533/04 (17 August 2005)

The court found that the plaintiffs' proposed amendments failed to allege the material terms of the alleged agreement and were so vague and embarrassing that they would result in an excipiable pleading. The amendments relating to the guarantee or indemnity by the second defendant amounted to a suretyship, which, being oral and not reduced to writing, contravened section 6 of the General Law Amendment Act and was unenforceable. The objections raised by the defendants were upheld, and the amendments were disallowed.

Citation
[2005] ZAGPHC 373
Parties
Plaintiff: Unterslak, R L; Plaintiff: Unterslak, S I; Defendant: Macsteel Holdings (Pty) Ltd; Defendant: Samson, E
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
17 August 2005
Case Number
25533/04
Procedural Posture
Civil Application / Application to Amend Particulars of Claim
Outcome
Application to amend particulars of claim dismissed; costs awarded against plaintiffs.
Judges
Willis
Legal Topics
Amendment of Pleadings, Suretyship, Oral Agreements, Vagueness and Embarrassment, General Law Amendment Act, Rule 18 Compliance
Civil Procedure Commercial and Corporate Amendment of Pleadings Suretyship Oral Agreements Vagueness and Embarrassment General Law Amendment Act Rule 18 Compliance

Case Brief

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Parties

Unterslak, R L

Plaintiff

Unterslak, S I

Plaintiff

Macsteel Holdings (Pty) Ltd

Defendant

Samson, E

Defendant

Procedural Posture

Civil Application / Application to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the proposed amendments to the particulars of claim disclose a cause of action against the defendants.
  2. 2 Whether the amendments are vague and embarrassing and thus excipiable.
  3. 3 Whether the alleged oral agreement constitutes a suretyship and falls foul of section 6 of the General Law Amendment Act.

Ratio Decidendi

The court found that the plaintiffs' proposed amendments failed to allege the material terms of the alleged agreement and were so vague and embarrassing that they would result in an excipiable pleading. The amendments relating to the guarantee or indemnity by the second defendant amounted to a suretyship, which, being oral and not reduced to writing, contravened section 6 of the General Law Amendment Act and was unenforceable. The objections raised by the defendants were upheld, and the amendments were disallowed.

Court Disposition

Application to amend particulars of claim dismissed; costs awarded against plaintiffs.

Orders

  • The proposed amendments to which the defendants have made objection are disallowed.
  • The plaintiffs are to pay the costs of this application.