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these original particulars of claim, the defendant was cited as Segakweng and
Associates CC (the “original defendant”). It is these particulars of claim which
the applicant wishes to amend.
The dispute
[2] The proposed amendment arises out of an order of this court granted by
Mdalana-Mayisela J on 11 September 2018. The learned judge ordered that,
following the deregistration of the original defendant, the first respondent and the
second respondent are to be substituted as parties to the action proceedings in
‘place and stead’ of the original defendant. In the alternative, the judge ordered that the first and second respondents are to be joined in the action proceedings.
This order was granted unopposed.
[3] Pursuant to this order and on 13 November 2023, the plaintiff served its notice
of intention to amend its particulars of claim on the first and second respondents
attorneys of record. This amendment envisaged making the original defendant the “first defendant”, and introducing the first respondent as the “second
defendant” and the second respondent as the “third defendant”.
[4] On 28 November 2023, the second defendant gave notice of objection to
plaintiff’s notice to amend and on 14 December 2023 the plaintiff made
application, in terms of Rule 28(4), to amend its particulars of claim.
[5] The defendant’s notice of objection to the amendment raised a number of issues
which were not persisted with before me.
[6] At the hearing the succinct issues are raised by the second defendant were that-
a. no formal service on second respondent of the joinder order of 11
September 2018 had taken place; and
b. at the time the joinder order was obtained by the plaintiff, the plaintiff’s claim
had prescribed.
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[7] In any event the plaintiff’s counsel during the hearing dealt comprehensively with
the various service of notices and other documents and his submissions were
not challenged by the second defendant’s counsel.
[8] The only issue then is whether the plaintiff’s claim against the second defendant
has prescribed.
[9] In my view, if prescription is not common cause, the application for amendment
is not the proper place to decide this issue. In general, prescription becomes an
issue only when it has been introduced into the pleaded issues, usually by way
of special plea.
[10] In this case and at the stage of considering whether an the amendment should
be allowed or not and based on apparent probabilities, I do not think the plaintiff should be deprived of the opportunity to present its claims. The defendant can
raise the proposed defence of prescription after an amendment is granted in the
same way as any other defence that becomes appropriate.
[11] I add that it is not clear to me what the effect of the court order granted on 11
September 2018 is. The question is whether the second defendant is substituted for the first defendant by stepping into the shoes of the first defendant, in effect, piercing the corporate veil. If so, this would mean that, because prescription has
not run against the first defendant, prescription will not have run against the
second defendant. Alternatively it could mean that the second defendant is
substituted for the first defendant with effect from the date of the order, in which
event the plaintiff’s claim against the second defendant may have prescribed.
[12] This is not the appropriate time or place to deal with this issue.
Costs
[13] Normally when an application to amend is opposed on the basis of excipiability,
the costs follow the result. This in this case the plaintiff would normally be entitled
to an order for costs.
[14] The order of this court by Mdalana-Mayisela J was handed down on 11
September 2018. The plaintiff served the amended particulars on the second
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and third defendants’ attorneys of record on 1 July 2020 and the plaintiff served
the notice to amend to give effect to this court order on the second and third
defendants’ attorneys of record on 13 November 2023. There was a delay of more than five years between the handing down of the court order and the giving
of notice to amend to give effect to that court order. This delay in my view is
unacceptable and the court should register its displeasure by making no order
as to costs.
Order
[15] The plaintiff (applicant) is granted leave to amend it particulars of claim [16] There is no order as to costs.
_______ ______
A MITCHELL
Acting Judge of the High Court
This judgment is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading it to the electronic file of this matter on
Caselines, and by publication of the judgment to the South African Legal Information
Institute. The date for hand-down is deemed to be 28 February 2025
HEARD ON: 19 February 2025
DECIDED ON: 28 February 2025
For the Applicant: Mr Ditheko Lebethe
Ditheko Lebethe Attorneys
46 Adderly Road
Kensington B
Randburg 079 031 9134
ditheko@lebetheattorneys.co.za
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For the Respondent: Mr Clement Shirilele
Maluleke, Msimang And Associates
44 Melrose Blvd
Melrose Arch Birnam
Johannesburg
010 448 9714
mma@icon.co.za