Wanderers Club v Boyes-Mofatt (3623/06) [2008] ZAGPHC 428 (25 September 2008)

Wanderers Club v Boyes-Mofatt (3623/06) [2008] ZAGPHC 428 (25 September 2008)

The court held that the proposed amendment to introduce the new term as an express or implied term into the written lease agreement was unsustainable, as the term was not contained in the agreement and the non-variation clause precluded its introduction. The concept of an express term requires its presence in the written document, and an implied term must be justified by law or the circumstances, which was not the case here. The only permissible amendment was to introduce the new term as a tacit term, as no objection was raised to this. The remainder of the amendment would render the plea excipiable and was therefore disallowed. The first defendant was ordered to pay the costs of the...

Citation
[2008] ZAGPHC 428
Parties
Plaintiff: The Wanderers Club; Defendant: Chris Boyes-Mofatt; Defendant: City of Johannesburg
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
25 September 2008
Case Number
3623/06
Procedural Posture
Civil Application / Application for Leave to Amend Plea
Outcome
Amendment to the first defendant's plea allowed only to the extent that the new term is alleged as a tacit term of the agreement; otherwise disallowed.
Judges
Van Oosten
Legal Topics
Amendment of Pleadings, Lease Agreement, Implied Terms, Non Variation Clause, Duty of Care
Civil Procedure Land and Property Amendment of Pleadings Lease Agreement Implied Terms Non Variation Clause Duty of Care

Case Brief

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Parties

The Wanderers Club

Plaintiff

Chris Boyes-Mofatt

Defendant

City of Johannesburg

Defendant

Procedural Posture

Civil Application / Application for Leave to Amend Plea

Legal Issues

  1. 1 Whether the first defendant may amend his plea to introduce a new term into the lease agreement as an express, tacit, or implied term.
  2. 2 Whether the proposed amendment would render the plea excipiable.
  3. 3 Whether the non-variation clause in the agreement precludes the introduction of the new term as an express or implied term.

Ratio Decidendi

The court held that the proposed amendment to introduce the new term as an express or implied term into the written lease agreement was unsustainable, as the term was not contained in the agreement and the non-variation clause precluded its introduction. The concept of an express term requires its presence in the written document, and an implied term must be justified by law or the circumstances, which was not the case here. The only permissible amendment was to introduce the new term as a tacit term, as no objection was raised to this. The remainder of the amendment would render the plea excipiable and was therefore disallowed. The first defendant was ordered to pay the costs of the...

Court Disposition

Amendment to the first defendant's plea allowed only to the extent that the new term is alleged as a tacit term of the agreement; otherwise disallowed.

Orders

  • The amendment to the first defendant's plea set forth in the notice of amendment dated 5 March 2008, excluding the words 'express, alternatively ... , alternatively implied ...' in the opening sentence of the new paragraph 6.4, is allowed.
  • The first defendant is ordered to pay the costs of the application for amendment.