Visage N.O. and Another v Firstrand Bank Ltd (53591/2012) [2014] ZAGPPHC 873 (29 October 2014)

Visage N.O. and Another v Firstrand Bank Ltd (53591/2012) [2014] ZAGPPHC 873 (29 October 2014)

The court held that the alleged 11 September 2009 agreement, relied upon by the Trust as the basis for its claim, constituted an amendment or variation of the material terms of the written settlement agreement dated 10 June 2008. The non-variation clause in the original agreement expressly precluded any oral amendment or variation unless reduced to writing and signed by all parties. The Trust's cause of action was entirely premised on the oral agreement, which was rendered void by the non-variation clause. Consequently, the proposed amendment to the particulars of claim did not disclose a valid cause of action, and the application for leave to amend was dismissed.

Citation
[2014] ZAGPPHC 873
Parties
Applicant: Pieter Johannes Visagé N.O.; Applicant: Maria Jacoba Visagé N.O.; Respondent: Firstrand Bank Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 October 2014
Case Number
53591/2012
Procedural Posture
Civil Application / Application for Leave to Amend Particulars of Claim
Outcome
Application for leave to amend particulars of claim dismissed with costs.
Judges
Botes
Legal Topics
Non Variation Clause, Amendment of Pleadings, Exception to Particulars of Claim, Contractual Variation, Liquidation Proceedings
Civil Procedure Commercial and Corporate Non Variation Clause Amendment of Pleadings Exception to Particulars of Claim Contractual Variation Liquidation Proceedings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Pieter Johannes Visagé N.O.

Applicant

Maria Jacoba Visagé N.O.

Applicant

Firstrand Bank Ltd

Respondent

Procedural Posture

Civil Application / Application for Leave to Amend Particulars of Claim

Legal Issues

  1. 1 Whether the Trust's proposed amendment to its particulars of claim discloses a valid cause of action.
  2. 2 Whether reliance on the alleged 11 September 2009 agreement is precluded by the non-variation clause in the written settlement agreement.
  3. 3 Whether the 11 September 2009 agreement constitutes an amendment or variation of the original written agreement.

Ratio Decidendi

The court held that the alleged 11 September 2009 agreement, relied upon by the Trust as the basis for its claim, constituted an amendment or variation of the material terms of the written settlement agreement dated 10 June 2008. The non-variation clause in the original agreement expressly precluded any oral amendment or variation unless reduced to writing and signed by all parties. The Trust's cause of action was entirely premised on the oral agreement, which was rendered void by the non-variation clause. Consequently, the proposed amendment to the particulars of claim did not disclose a valid cause of action, and the application for leave to amend was dismissed.

Court Disposition

Application for leave to amend particulars of claim dismissed with costs.

Orders

  • The First and Second Applicants' application for leave to amend its particulars of claim dated 8 April 2014 is dismissed with costs.