Visagé and Another v First Rand Bank Limited (A20/2014) [2016] ZAGPPHC 886 (30 September 2016)

Visagé and Another v First Rand Bank Limited (A20/2014) [2016] ZAGPPHC 886 (30 September 2016)

The court found that the respondent, as prospective excipient, failed to show that the acceleration clause in the settlement agreement had been triggered or activated on any possible interpretation of the pleadings. Consequently, there was no question of the oral agreement seeking to vary the settlement agreement in conflict with the Shifren principle. The court further held that the oral agreement did not constitute an amendment of the non-variation clause or the prescribed payment regime, and that the particulars of claim were not excipiable. The appeal was upheld, the order of the court a quo was set aside, and the application for leave to amend was granted.

Citation
[2016] ZAGPPHC 886
Parties
Appellant: Pieter Johannes Visagé N.O.; Appellant: Maria Jacoba Visagé N.O.; Respondent: First Rand Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 September 2016
Case Number
A20/2014
Procedural Posture
Civil Appeal / Appeal Against Refusal of Amendment to Particulars of Claim
Outcome
Appeal upheld; order of court a quo set aside; application for leave to amend granted.
Judges
W R C Prinsloo, C Pretorius, N Kollapen
Legal Topics
Amendment of Pleadings, Non Variation Clause, Oral Agreement, Exception Procedure, Damages Action
Civil Procedure Commercial and Corporate Amendment of Pleadings Non Variation Clause Oral Agreement Exception Procedure Damages Action

Case Brief

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Parties

Pieter Johannes Visagé N.O.

Appellant

Maria Jacoba Visagé N.O.

Appellant

First Rand Bank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal Against Refusal of Amendment to Particulars of Claim

Legal Issues

  1. 1 Whether the oral agreement entered into between the parties constituted a variation of the written settlement agreement in breach of the non-variation clause.
  2. 2 Whether the particulars of claim, as amended, would be excipiable for failure to disclose a cause of action.
  3. 3 Whether the acceleration clause in the settlement agreement had been triggered by non-payment, thereby rendering the oral agreement unenforceable under the Shifren principle.

Ratio Decidendi

The court found that the respondent, as prospective excipient, failed to show that the acceleration clause in the settlement agreement had been triggered or activated on any possible interpretation of the pleadings. Consequently, there was no question of the oral agreement seeking to vary the settlement agreement in conflict with the Shifren principle. The court further held that the oral agreement did not constitute an amendment of the non-variation clause or the prescribed payment regime, and that the particulars of claim were not excipiable. The appeal was upheld, the order of the court a quo was set aside, and the application for leave to amend was granted.

Court Disposition

Appeal upheld; order of court a quo set aside; application for leave to amend granted.

Orders

  • The appeal is upheld.
  • The respondent is ordered to pay the costs of the appeal, including the costs of two counsel.