Wirth v Wirth and Others (13801/2020) [2021] ZAWCHC 163 (23 August 2021)

Wirth v Wirth and Others (13801/2020) [2021] ZAWCHC 163 (23 August 2021)

Rule 28(8) unambiguously entitles a party affected by an amendment—namely, the party receiving the amended pleading—to take steps contemplated in Rules 23 and 30, including filing an exception. The defendants' failure to object to the proposed amendment does not constitute a waiver of their right to except to the amended particulars of claim. The plaintiff's interpretation, which would restrict the right to except only to the party effecting the amendment, is unsupported by the wording of Rule 28(8), relevant case law, and legal commentary. The application to set aside the defendants' second notice in terms of Rule 23(1) as an irregular step is therefore dismissed.

Citation
[2021] ZAWCHC 163
Parties
Plaintiff: Fritz Christiaan Wirth (JNR); Defendant: Johan Christiaan Wirth; Defendant: Fritz Herman Werner Wirth (SNR); Defendant: Migal Landman Wirth; Defendant: Nooitgedacht Beherend (Pty) Ltd; Defendant: Koelpark Development (Pty) Ltd; Defendant: Nooitgedacht Investment Holdings (Pty) Ltd; Defendant: Nooitgedacht Wynmakery (Pty) Ltd; Defendant: Bronz Editions (Pty) Ltd; Defendant: Koelenhof Konstruksie (Pty) Ltd; Defendant: Nooitgedacht Real Estate (Pty) Ltd; Defendant: The Companies & Intellectual Property Commission; Defendant: The Commissioner for the SARS; Defendant: The South African Reserve Bank; Defendant: Nedbank Limited; Defendant: JD Kirsten (Pty) Ltd t/a Kirsten Boerdery; Defendant: Nooitgedacht Flower Company (Pty) Ltd; Defendant: June Wirth; Defendant: Liesl Theodora Coldman (born Wirth)
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 August 2021
Case Number
13801/2020
Procedural Posture
Civil Application / Application to Set Aside Notice of Exception as Irregular Step
Outcome
Application dismissed with costs, including costs occasioned by the postponements on 3 May 2021 and 17 June 2021.
Judges
Nuku
Legal Topics
Exceptions to Pleadings, Rule 28 Amendments, Rule 23 Exceptions, Waiver of Procedural Rights
Civil Procedure Commercial and Corporate Exceptions to Pleadings Rule 28 Amendments Rule 23 Exceptions Waiver of Procedural Rights

Case Brief

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Parties

Fritz Christiaan Wirth (JNR)

Plaintiff

Johan Christiaan Wirth

Defendant

Fritz Herman Werner Wirth (SNR)

Defendant

Migal Landman Wirth

Defendant

Nooitgedacht Beherend (Pty) Ltd

Defendant

Koelpark Development (Pty) Ltd

Defendant

Nooitgedacht Investment Holdings (Pty) Ltd

Defendant

Nooitgedacht Wynmakery (Pty) Ltd

Defendant

Bronz Editions (Pty) Ltd

Defendant

Koelenhof Konstruksie (Pty) Ltd

Defendant

Nooitgedacht Real Estate (Pty) Ltd

Defendant

The Companies & Intellectual Property Commission

Defendant

The Commissioner for the SARS

Defendant

The South African Reserve Bank

Defendant

Nedbank Limited

Defendant

JD Kirsten (Pty) Ltd t/a Kirsten Boerdery

Defendant

Nooitgedacht Flower Company (Pty) Ltd

Defendant

June Wirth

Defendant

Liesl Theodora Coldman (born Wirth)

Defendant

Procedural Posture

Civil Application / Application to Set Aside Notice of Exception as Irregular Step

Legal Issues

  1. 1 Does Rule 28(8) of the Uniform Rules of Court preclude a defendant from taking an exception to amended particulars of claim where no objection was made to the notice of intention to amend?
  2. 2 Does failure to object to a proposed amendment constitute a waiver of the right to except to the amended pleading?
  3. 3 Is the defendants' second notice in terms of Rule 23(1) an irregular step under Rule 30?

Ratio Decidendi

Rule 28(8) unambiguously entitles a party affected by an amendment—namely, the party receiving the amended pleading—to take steps contemplated in Rules 23 and 30, including filing an exception. The defendants' failure to object to the proposed amendment does not constitute a waiver of their right to except to the amended particulars of claim. The plaintiff's interpretation, which would restrict the right to except only to the party effecting the amendment, is unsupported by the wording of Rule 28(8), relevant case law, and legal commentary. The application to set aside the defendants' second notice in terms of Rule 23(1) as an irregular step is therefore dismissed.

Court Disposition

Application dismissed with costs, including costs occasioned by the postponements on 3 May 2021 and 17 June 2021.

Orders

  • The application is dismissed with costs, including the costs occasioned by the postponement of the application on 3 May 2021 and 17 June 2021.