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[2013] ZAGPPHC 504
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Firstrand Bank Limited t/a Nissan Finance v Scott (77015/2011) [2013] ZAGPPHC 504 (14 November 2013)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH GAUTENG HIGH COURT.
PRETORIA)
Case
number: 77015/2011
Date:
14 November 2013
In the matter between:
FIRSTRAND BANK LIMITED T/A
NISSAN
FINANCE
.................................................
Applicant
and
EG
SCOTT
........................................................................................................................
Respondent
JUDGMENT
PRETORIUS J,
[1]
This is an application in terms of Rule
28(4) of the Uniform Rules of Court to amend the Applicant’s
particulars of claim.
[2]
Summons in this matter was issued during
July 2010 and served on the defendant (respondent in present
application) on 22 December
2010.
[3]
Plaintiff’s Notice of Intention to
Amend is dated 18 July 2013. The respondent objects to the present
application to amend,
although the respondent has yet to plead in the
action.
[4]
Due to the prior objections by the
respondent to amend, the applicant has decided to replace the entire
particulars of claim and
has informed the respondent of such in the
Notice of Intention to Amend of 18 July 2013.
[5]
The
respondent objects that:
“
The plaintiff fails to
comply with Rule 28 and to set out exactly what is sought to be
amended in any detail whatsoever. ”
This court cannot find that this
objection can be sustained due to the fact that the respondent has
not yet pleaded in the action
and it is not necessary to give any
more detail than the detail the applicant has already provided.
[6]
The second ground of objection:
“
Plaintiff merely
replaces its existing particulars of claim in toto leaving the
unfortunate defendant to pick his way through the
proposed globular
amendment to try and discern precisely what it is in the particulars
of claim as a whole that is being amended.
”
[7]
During argument respondent’s
counsel admitted that it would not be necessary to compare the
previous particulars of claim
with the present particulars of claim,
as the respondent has not pleaded. If the cause of action is still
the same, then the respondent
will be able to plead on the present
particulars of claim. The respondent could not prove any prejudice
should the amendment be
granted. It is common cause that the cause of
action is still the same as was set out in the original particulars
of claim.
[8]
In
Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meats Exports Ltd [2004] 1 AIISA
120 (SCA)
at 133 h-l Heher JA held:
“
Amendments are regulated
by a wide and generous discretion which leans towards the proper
ventilation of disputes and are granted
according to a body of rules
developed in that context. ”
[9]
If this principle is applied as set out
in the Blaauwberg matter (supra) the court can only deny such an
application if the court
can find prejudice or injustice which cannot
be cured by an order for costs. I cannot find that the respondent has
proved any prejudice
or injustice that will ensue, should the order
be granted.
[10]
The third objection that:
“
The defendant is prejudiced
by replacement of the particulars of claim as a whole in this
fashion.”
[11]
There is no indication by the respondent
in any manner as to the prejudice or injustice it will suffer should
the application be
granted.
[12]
In
Moolman
v Moolnam
1927 CPD 27
it was stated
at:
“
The practical rule
adopted seems to be that amendments will always be allowed unless the
amendment is mala fide or unless such amendment
would cause an
injustice to the other side which cannot be compensated by costs, or
in other words unless the parties cannot be
put back for the purposes
of justice in the same position as they were when the pleading which
is sought to amend was filed. ”
[13]
I cannot find that the respondent has
shown in any of the three objections that it will suffer prejudice or
injustice should the
court grant the amendment. In this application
it is even more so where the whole of the particulars of claim is
replaced and the
respondent has not pleaded as yet. Counsel for the
respondent, conceded, correctly in my view, that where the respondent
had not
pleaded there will not be prejudice in these circumstances.
[14]
Therefore I make the following order:
1.
Leave is granted to the plaintiff to
amend its particulars of claim in accordance with the plaintiff’s
notice of intention
to amend, dated the 18
th
of July 2013, delivered to the defedant’s attorney on the 26
th
of July 2013;
2.
Each party to pay its’ own costs.
Judge C. Pretorius
Case number : 77015/2011
Heard on : 11 November 2013
For the Applicant: Adv Du Plessis
Instructed by : Hack Stupel &
Ross
For the Respondent : Adv J
Schoeman
Instructed by : GP Venter
Date of Judgment: 14 November 2013