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2021
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[2021] ZAGPPHC 206
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Sambit Holdings (Proprietary) Limited v Marais and Another (90194/2015) [2021] ZAGPPHC 206 (8 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NO: 90194/2015
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In the matter between:
SAMBIT
HOLDINGS (PTY) LTD
Applicant
and
JOHAN
MARAIS
First
Respondent
PAUL
MOJAPELO
Second
Respondent
This
judgment is handed down electronically by circulation to the parties’
representatives by way of email. The date
of the judgment shall
be deemed to be 8 April 2021.
JUDGMENT
AVVAKOUMIDES
AJ
INTRODUCTION
:
1.
This is an application
for leave to appeal against a judgment of this Court dated 9 December
2019 in terms of which an application
by the plaintiff to amend its
replication was dismissed with costs.
2.
Section 17 of the
Superior Courts Act, 10 of 2013 provides as follows:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including
conflicting judgments on the matter under consideration”
3.
I have had regard to
the written and oral submissions on behalf of the applicant. I
am not persuaded that the appeal would
have a reasonable prospect of
success. Before dealing with the reasons for my decision it is
necessary to clarify that, insofar
as condonation was necessary for
the undue delay by the applicant’s attorney to upload the
application on CaseLines and to
prosecute the application for leave
to appeal, such condonation is granted.
4.
Furthermore, insofar as
there may have been misunderstanding between the parties as to
whether condonation was granted in accordance
with prayer 1 of the
original notice of motion in respect of the application for
amendment, although not specifically stated in
my judgment of 9
December 2019, I did exercise discretion in considering the aspect of
condonation and this is the precise reason
why I heard full argument
on the merits of the application for amendment. I do not deem
it necessary to provide any reasons
save to state that the
respondents’ attorneys did undertake not to object to the late
filing of the application for amendment.
5.
I now turn to the
reasons for this judgment. It is settled law that a party has
to make out his case in the particulars of
claim. A party
relying on a cession must allege and prove such cession. Only in
special or exceptional circumstances may
a party, by amendment of its
particulars of claim, be permitted to introduce a cause of action it
did not have at the time when
summons was issued. This is what
the applicant has sought to do without showing any special or
exceptional circumstances.
6.
Rule 18(6) provides as
follows:
“
Whether
the contract is written or oral and when, where and by who it was
concluded and if the contract is written a true copy thereof
or of
the part relied on in the pleading shall be annexed to the pleading”
.
7.
The cessionary, namely
Absa, on 8 November 2015, which is the date upon which summons was
served, was the only party entitled to
claim in respect of the
relevant debt for which the applicant seeks to hold the respondents
liable. The applicant contended
that on 1 November 2016 Absa
re-ceded the principal debt and that the applicant became vested with
the claim retrospectively.
8.
The pleadings in this
case closed on 30 March 2016, before the re-cession of the ceded
debt.
9.
At the stage when the
applicant (as plaintiff) sought to amend its replication to include
the re-cession of the book debt from Absa
to the applicant, it is
clear from the facts that the applicant could not amend its
particulars of claim to introduce the re-cession
because the claim
against the respondents would have prescribed.
10.
The applicant, now
faced with the dilemma of prescription, thus sought to reintroduce
the re-cession by way of an amendment to the
replication and this, in
my view, is prejudicial to the respondents.
11.
I do not deem it
necessary to delve into a discussion relating to the authorities
relied on by the applicants in the application
for leave to appeal,
save to state that the issues dealt with in such authorities are
distinguishable on the facts before me.
12.
Accordingly, on the
facts before me, I am not persuaded that the appeal would have a
reasonable prospect of success. The application
for leave to
appeal is thus dismissed with costs.
G.T. AVVAKOUMIDES
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
PRETORIA
Representation for
parties:
On behalf of
Applicant: Adv C Acker
Instructed
by:
Pagel Schulenburg
Email:
lombard@law.co.za
On behalf of First
Respondent: Adv LW de Koning SC
Instructed by:
Zelda Karelsen
Email:
zander@zkattorneys.co.za