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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : 7246 /2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
DATE 12/02/25
SIGNATURE
In the matter between:
EAST AND WEST INVESTMENTS (PTY) LTD Applicant s
AND SIXTY OTHERS
and
MARSH (PTY) LTD Responden t
In re:
EAST AND WEST INVESTMENTS (PTY) LTD Plaintiff s
AND SIXTY OTHERS
and
AIG SOUTH AFRICA LIMITED First Defendant
OLD MUTUAL INSURE LIMITED Second Defendant
CENTRIQ INSURANCE COMPANY LIMITED Third Defendant
GUARD RISK INSURANCE COMPANY LIMITED Fourth Defendant
MARSH (PTY) LTD Fifth Defendant
JUDGMENT
Joyini AJ
INTRODUCTION
[1] This is an application by the applicant s for leave to amend the particulars of
claim in the main proceedings.
[2] The application for leave to amend is aimed at correcting the pleading in the
following respects:
[2.1] The applicant s seek to introduce the averment that, in the stead of Fortress, it
is Capital Propfund (Pty) Ltd, a private company with registration number
2014/013211/07 that holds the proportionate interest of 50% in Polokwane
Building at Cnr Hospital & Market St, Polokwane Central, Polokwane, together
with the first plaintiff.
[2.2] The applicant s seek to introduce the averment that, in the stead of Group 44,
it is Mark Batch elor Investments CC, a close corporation with registration
number C[...] that holds the proportionate interest of 20% in Polokwane
Building at Cnr Hospital & Market St, Polokwane Central, Polokwane, together
with the first p laintiff.
[2.3] The applicant s seek only to amend the parties that are no longer forming part
of consortium and the joint venture in order to correctly cite the actual entities,
namely, Capital Propfund (Pty) Ltd and Mark Batchelor Investments CC.
[2.4] Counsel for the applicants argued that the debt that would be claimed in the
intended amendment is the same debt claimed in the existing particulars of
claim and that t he institution of the main proceedings had interrupted the
running of the prescription when the summons was served.
[3] The 1st, 2nd, 3rd, and 4th defendants [the insurers] do not oppose the
application.
[4] It is only the respondent (the 5th defendant in the main proccedings) who
opposes the application on the ground that the intended amendment would
allegedly introduce claims by Capital Propfund (Pty) Ltd and Mark Batchelor
Investments CC that have prescribed.
[5] Counsel for the respondent argues that the claims now sought to be
introdiced have thus prescribed and the amendment should therefore be
refused. The court was referred to Section 15(1) of the Prescription Act 68
of 1969 which provides: 'The running of prescription shall, subject to the
provisions of ss (2), be interrupted by the service on the debtor of any process
whereby the creditor claims payment of the debt.'
[6] Counsel for the respondent submits that for prescription therefore to be
interrupted by service of process on the debtor, the summons has to be one in
which “ the creditor claims payment of the debt.”
[7] Counsel for the respondent further argues that the authorities on the correct
interplay between an application for leave to amend and section 15(1) of the
Prescription Act are the Supreme Court of Appeal judgments in Associated
Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit1
and Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd2.
LEGAL PRINCIPLES
[8] When adjudicating the dispute between the parties, the court should be
guided by the following legal principles, set out in the ancient Moolman v
Estate Moolman :3
1 2000 (2) SA 789 (SCA).
2 [2004] 1 SA 129 (SCA).
3 1927 CPD 27 at 29 .
[8.1] it is trite that a litigant may amend his or her pleadings at any stage of the
proceedings before judgment;
[8.2] a court hearing an application for an amendment has a discretion to grant it.
Such discretion must be exercised judiciously.
[8.3] the general approach to amendments is that they should be allowed, unless
the amendment application is made in bad faith and would cause an injustice
which cannot be compensated with a costs order;
[8.4] an amendment that would render the particulars of claim excipiable is
impermissible.4
ANALYSIS AND DISCUSSION
[9] The court has the discretion to grant or refuse the amendment, which must be
exercised judiciously. For the court to exercise its discretion in favour of
granting an amendment, the seeker must demonstrate a measure of good
faith and must offer a reasonable explanation for why the amendment is
required. The court must then weigh the reasons or explanation given by the
applicant for the amendment against objections raised by the opponent, and
where the proposed amendment will prejudice the opponent or would be
excipiable, the amendment should be refused.
[10] In Trans -Drakensburg Bank v Combined Engineering (Pty) Ltd ,5 the court
said: "Having already made his case in his pleadings, if he wishes to change
or add to this he must explain the reason and show prima facie that he has
something deserving of consideration, a triable issue, he cannot be allowed to
harass his opponent by an amendment which has no foundation. He cannot
place on record an issue of which he has no supporting evidence where
evidence requires or save perhaps in exceptional circumstances, introduce an
amendment which would make the pleading excipiable."
4 Krischke v Road Accident Fund 2004 (4) SA 358 (W) at 363B; Bowring Barclays & Genote (Edms)
Bpk v De Kock [1991] 3 All SA 42 (SWA).
5 1967 (3) SA 632(D) at 640H. See also Krogman v Van Reenen 1926 OPD 191 at 194 -195
[11] In Union Finance Holdings (Pty) Ltd v Bonugli and Another NNO6 the court
held the following : “[6] The core issue raised by the plaintiffs is that the
conditional counterclaims have become prescribed. Before I deal with it any
further, it is necessary to decide whether prescription can be raised in these
proceedings, being interlocutory in nature. The defendant, with reliance on the
judgment of Viljoen J (as he then was) in Rand Staple -Machine Leasing (Pty)
Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W), submitted that the defence of
prescription can only be raised by way of a special plea in the main action and
therefore not in an interlocutory application as the plaintiffs have done.
In Rand Staple -Machine the learned judge, in dealing with an application for
an amendment with reference to the proceedings envisaged in s 17(2) of the
Prescription Act 68 of 1969 (the Prescription Act), held that prescription
could only be raised in main proceedings, such as trial proceedings, and not
in intermediate or interlocutory proceedings. The judgment has not been
referred to in subsequent cases dealing with this aspect. The opposite view
was expressed by Foxcroft J in Grindrod (Pty) Ltd v Seaman 1998 (2) SA
347 (C), where in regard to an application for amendment the learned judge
held that prescription could be raised either if it were common cause or in
situations where the claim or right to claim were 'known to have prescribed'.
The last -mentioned phrase is a quotation from the judgment of Fleming DJP
in Stroud v Steel Engineering Co Ltd and Another 1996 (4) SA 1139 (W) at
1142, where the leaned judge, in regard to an application to amend by
substituting the existing cause of action with a new cause of action, held that
'it would make no sense to permit a claim which is known to have prescribed'.
I prefer, and agree with, the approach adopted in Grindrod which, as correctly
pointed out by counsel for the plaintiffs, is in line with the judgment of the
Supreme Court of Appeal in Associated Paint & Chemical Industries (Pty) Ltd
t/a Albestra Paint and Lacquers v Smit 2000 (2) SA 789 (SCA) para 9 where
Grosskopf JA, in regard to an opposed application for amendment, remarked :
'By raising the question of prescription in his opposing affidavit the defendant,
in my view, complied with the provisions of s 17(2) of the Prescription Act 68
of 1969 .'
6 2013 (2) SA 449 .
[12] In Stroud v Steel Engineering Co Ltd and Another7 the court held: “There
remains the contention that because the claim is prescribed, it should not be
allowed. I accept that the Court normally would not permit an allegation which
has no possibility of advancing the situation of a litigant and can at best serve
as basis for the need to hear evidence which leads nowhere. Accordingly , it
would make no sense to permit a claim which is known to have prescribed.
But if the supervening of prescription is not common cause, the application for
amendment is normally not the proper place to attempt to have that issue
decided .”
[13] It is quite interesting to note that a judgment by a full bench of the Kwazulu -
Natal High Court has revitalized the debate whether an amendment to a
pleading should be allowed if the claim, as amended, has prescribed. In
Heramoney Salligram and Others v Nalin Salligram and Other s,8 the court
was presented with a case where the first appellant sought to amend its
particulars of claim by replacing an alleged oral agreement involving a debt
payable by the first respondent with a cession agreement.
[14] By way of summary, t he respondents opposed the amendment, and argued
that, by referring to a new cession agreement, the claim in question was
based on a different and separate agreement, and therefore a different debt
was now being claimed. Since this debt had prescribed, they argued that the
amendment ought not be allowed.
[15] The KZN High Court framed the question in the following terms: was the
appellant claiming payment of the same debt or a different debt in its
amended particulars? To answer this question, the court stressed that the
term “debt” referred to in the Prescription Act of 1969 is not the same as the
cause of action upon which the debt is based. A cause of action refers to the
factual basis, the set of material facts that forms the basis of the plaintiff’s
legal right of action. That can be amended. However, the debt which forms
7 1996 (4) SA 1139 (W).
8 [2019] ZAKZPHC 63 (20 September 2019) .
the basis of the plaintiff’s right of action needs to remain the same if an
amendment is to be allowed.
[16] The court explained that, even an original summons which fails to disclose a
cause of action may interrupt the running of prescription provided that the
right of action in the amended summons is recognizable as the same or
substantially the same right of action as that disclosed in the original
summons.
[17] In conclusion , the court held that the application for an amendment is not
normally the proper forum to decide the issue of prescription. Once
prescription is not common cause, the plaintiff should not be deprived of his
chance to put his claim before the court. The defendant will have the
opportunity to raise the defence of prescription in its plea in the same way that
it would raise any other defence once the amendment has been granted.
CONCLUSION
[18] In determining this matter, I must be guided by the well -established principles
referred to above applicable to applications to amend particulars of claim . In
this regard, I need to draw certain inferences and weigh probabilities as they
emerge from the parties’ respective submissions, affidavits, heads of
argument and oral submissions by parties’ counsel.
[19] There is a view that the issue of prescription is best left to the pleadings and
ultimate resolution at trial. I align myself with this view.
[20] I also align myself with the view that t he respondents in Salligram supra may
have made a decision that is not one of the best by opposing the amendment
on the basis that the claim had prescribed. The same goes for the respondent
in casu. Even if an amendment incorporates a fresh cause of action, our
courts are usually inclined to allow it as long as no prejudice results that
cannot be cured by an order of costs.
[21] In Mabaso v Minister of Police ,9 Goldstone AJ (as he then was) said that
‘even in a gross case’ the court should grant an amendment unless there is a
likelihood of prejudice which cannot be cured by a suitable order for costs.
[22] In Myers v Abramson,10 it was held that e ven though the amendment has the
effect of changing the character of the action and will necessitate fresh
evidence to be led, our courts will still allow it if it is necessary to determine
the real issues between the parties.
[23] In Cordier v Cordier ,11 the court, in an application for an amendment, found
that the plaintiff’s claim had actually prescribed, both in its original form and in
its amended form. The court, however, granted the amendment, taking the
view that the plaintiff might be able to counter the defence of prescription by
proving an acknowledgement of liability by the defendant, a waiver of the
defence of prescription, or some other argument. The grant of the amendment
would leave it open to the plaintiff to raise these arguments, whereas refusal
of the amendment would leave the plaintiff no option but to appeal.
[24] It is trite that the court has the discretion to grant or refuse the amendment,
which must be exercised judiciously. For the court to exercise its discretion in
favour of granting an amendment, the seeker must demonstrate a measure of
good faith and must offer a reasonable explanation for why the amendment is
required. The applicants have done this to the court’s satisfaction. The court
must then weigh the reasons or explanation given by the applicant for the
amendment against objections raised by the opponent, and where the
proposed amendment will prejudice the opponent or would be excipiable, the
amendment should be refused. Having weighed the reasons and explanation
given by the applicants against objections raised by the respondent, I am of
the considered view that the proposed amendments are not excipiable and as
such, the respondent will not be significantly prejudiced if the application is
granted.
9 SA 319 (W) at 323D 1980 (4) .
10 1951 (3) SA 438 (C) .
11 1984 (4) 524 (CPD) .
[25] In considering the matter, and taking into account all the additional facts,
circumstances together with submissions and authorities referred to by
counsel , I am of the considered view that the applicant ha s made out a case
for the relief sought . I am of the view that the a pplicant ha s satisfied all the
legal principles referred to above. It is therefore reasonable and fair that I
should grant the applicant’s application for the amendment of particulars of
claim.
COSTS
[26] I am entitled to consider all the relevant circumstances surrounding this
matter. In substance , the applicant s have been successful against the
respondent. The rule that costs should follow the event is still applicable in
these circumstances. The respondent ha s not shown any good reason why
this rule should not be applied.
[27] I have considered both parties’ argument relating to the costs of this
application. I am accordingly inclined to grant costs in applicant s’ favour. The
respondent/fifth defendant shall pay the costs of the application, including
costs of two counsel, where so employed, both counsel on scale C.
ORDER
[28] In the circumstances, I make the following order:
[28.1] The applicants are granted leave to amend their particulars of claim as per the
notice of intention to amend dated 10 November 2023, by:
[28.1.1] replacing the description of the twenty -seven th plaintiff on page 2 of the
combined summons to reflect the following: “Capital PropFund (Pty)
Ltd REG NO 2014/013211/07 ;”
[28.1.2] replacing the description of the twenty -seven th plaintiff on page 13 of
the combined summons to reflect the following description: “Capital
PropFund (Pty) Ltd, a private company with registration number
2014/013211/07 and registered address situated at C[...] P[...] , B[...]
[...], C[...] C[...] , Morning Side, Gauteng, 2196, dully registered and
incorporated with the company laws of the Republic of South Africa ;”
[28.1.3] replacing paragraph 27 of the particulars of claim with the following
paragraph: “The twenty -seventh plaintiff is Capital PropFund (Pty) Ltd,
a private company with registration number 2014/013211/07 and
registered address situated at C[...] P[...] , B[...] [...] , C[...] C[...] , Morning
Side, Gauteng, 2196, duly registered and incorporated with the
company laws of the Republic of South Africa ;”
[28.1.4] replacing the description of the twenty -seventh plaintiff on page 2 of the
combined summons to reflect the following: “Mark Batchelor
Investments CC REG NO C[...] ;”
[28.1.5] replacing the citation of the thirty -second plaintiff on page 14 of the
combined summons to reflect the following description: “Mark
Batchelor Investments CC, a closed corporation with limited liability
and situated at 6[...] H[...] Road Bryanston 2191, duly registered and
incorporated with the company laws of the Republic of South Africa
with registration number C[...] ;”
[28.1.6] replacing paragraph 32 of the particulars of claim with the following
paragraph: “The thirty -second plaintiff is Mark Batchelor Investments
CC, a closed corporation with limited liability and situated at 6[...] H[...]
Road, Bryanston, 2191, duly registered and incorporated with the
company laws of the Republic of South Africa with registration number
C[...] ;”
[28.1.7] inserting, a new row at the end of the table at paragraph 120 to reflect
the following:
Lynnwood Erf 3[...] Second Plaintiff R247,984.75
[28.2] The respondent/fifth defendant shall pay the costs of the application, including
costs of two counsel, where so employed, both counsel on scale C.
T E JOYINI
ACTING JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES:
For the applicant s: Adv PG Cilliers SC and Adv C Richard
Instructed by : Weavind and Weavind Attorneys
Email: nic@weavind.co.za / pgcilliers@rsabar.com / conrad@clubadvocates.co.za
For the respondent : Adv A Franklin SC and Adv S Quin
Instructed by : Cox Yeats Attorneys
Email: rhoal@coxyeats.co.za / revans@coxyeats.co.za / aefranklin@group621.co.za
/ quin@group621.co.za
Date of Hearing: 24 January 2025
Date of Judgment: 12 February 2025
This Judgment has been delivered by uploading it to the Court online digital data
base of the Gauteng Division, Pretoria and by e -mail to the Attorneys of record of the
parties. The deemed date and time for the delivery is 12 February 2025 at 10h00.