REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
CASE NO: A20/2026
In the matter between:
TRACETEC (PTY) LTD Appellant
and
BUSINESS EQUIPMENT ASSET FINANCE (PTY) LTD Respondent
Neutral citation: Tracetec (Pty) Ltd v Business Equipment Asset Finance (Pty)
Ltd (Case No: A20/2026) [2026] ZAWCHC ___ (28/08/2026)
Coram: DA SILV A SALIE J, DA VIS J and MTHIMUNYE AJ
Heard: 22 July 2026
Delivered: Electronically on 28 August 2026
Summary: Appeal against refusal of application for leave to amend particulars
of claim – disputes of fact arising in application for leave to amend – task of
court is not to resolve the triable issue, but merely to determine whether prima
facie the amendment raises a triable issue.
ORDER
1. The appeal is upheld with costs, including the cost of counsel on scale B.
2. The order of the court a quo is set aside, and replaced with the following
order:
2.1 The appellant is granted leave to amend its particulars of claim, in
accordance with its notice in terms of Rule 28(1) dated 31 May
2024.
2.2. The costs of the application for leave to amend shall be costs in the
cause.
JUDGMENT
DA VIS J and MTHIMUNYE AJ (DA SILV A SALIE J concurring):
Introduction
[1] This is an appeal against the dismissal of the appellant’s application in
terms of Rule 28(4) of the Uniform Rules of Court for leave to amend its
particulars of claim. The appeal proceeds with the leave of the court a quo.
[2] For the sake of convenience, the appellant is referred to as ‘ the plaintiff’
and the respondent as ‘the defendant’.
[3] It is not necessary to set out the relevant facts since they appear from the
judgment of the court a quo, which should be read together with this judgment.
It is sufficient, for present purposes , to refer to the various agreements referred
to in the plaintiff’s particulars of claim.
a) Firstly, it was alleged that the plaintiff entered into an oral
agreement with Utrackit Manufacturers CC (‘ Utrackit’), in terms
whereof Utrackit undertook to manufacture purpose -built beacons
for use by the plaintiff as part of its radio frequency vehicle
tracking business, on receipt of written orders from the plaintiff,
and the plaintiff undertook to pay for the beacons by means of
finance obtained from a third party financier , which payments
would be made directly to Utrackit by the financier (‘the Utrackit
oral agreement’).
b) Secondly, it was alleged that the plaintiff and the defendant, in the
knowledge of the Utrackit oral agreement, entered into an oral
agreement (‘the BEAF oral agreement’) in terms whereof the
defendant undertook to finance the purchase of the beacons by:
i. concluding a supplier agreement with Utrackit to the effect
that the defendant would purchase the beacons from
Utrackit at the price agreed between the plaintiff and
Utrackit;
ii. concluding a standard Master Rental Agreement with the
plaintiff in terms whereof the plaintiff would rent the
beacons from the defendant against payment of the
monthly rental stipulated in the Master Rental Agreement,
which was to be amended to provide for the transfer of
ownership of the beacons to the plaintiff upon payment of
all the rentals due in terms of the Master Rental
Agreement.
c) Thirdly, it was alleged that the plaintiff and the defendant entered
into two written Master Rental Agreements in respect of two orders
for beacons placed by the plaintiff with Utrackit, duly amended to
stipulate that ownership of the beacons would be transferred to the
plaintiff at the end of 36 months, provided that the plaintiff had
made all payments in full (‘the MRAs’).
[4] In its original particulars of claim, dated 5 April 2022, the plaintiff
pleaded three alternative claims against the defendant, namely:
a) a main claim founded on unjustified enrichment on the basis that the
MRAs had been invalid from the outset due to impossibility of
performance (because the beacons had not yet been manufactured) , and
that the defendant had accordingly been enriched by the payments made
by the plaintiff in terms of the invalid MRAs;
b) a first alternative claim, predicated on the assumption that the M RAs
were valid, for damages for breach of the MRAs;
c) a second alternative claim founded on unjustified enrichment, on the basis
that the plaintiff had overpaid the defendant amounts which were not
owed in terms of the M RAs, with the result that the defendant had
allegedly been enriched.
[5] In terms of its notice of intention to amend dated 31 May 2024 (‘the Rule
28(1) notice), the plaintiff sought to:
a) introduce a new main claim based on fraudulent misrepresentation
for cancellation of the BEAF oral agreement and the M RAs,
restitution of all amounts paid in terms of the MRAs and damages;
b) introduce a new second alternative claim for rectification of the
MRAs to reflect that the beacons had not yet been manufactured by
Utrackit at the time when the MRAs were concluded , and for
cancellation of the MRAs on account of the defendant’s breach in
failing to deliver the beacons to the plaintiff at the end of the 36 -
month period;
c) preserve the old main claim as the new first alternative claim, the
old first alternative claim as the third alternative claim and the old
second alternative claim as the fourth alternative claim.
The objection to the proposed amendment
[6] The defendant objected to the proposed amendment on the main ground
that the plaintiff had allegedly exercised an election to enforce the MRAs, not to
cancel them, and was therefore precluded from belatedly claiming cancellation
of the MRAs.
[7] It contended in this regard that the plaintiff had not sought to cancel the
MRAs in its original particulars of claim, but had instead elected to affirm the
MRAs by claiming damages in lieu of specific performance. It alleged, further,
that the plaintiff had had knowledge of the facts pertaining to the alleged fraud
at the time when it issued summons , and that its failure to institute a claim for
cancellation, in the knowledge of the relevant facts, indicated an election not to
cancel the MRAs.
The relevant legal principles
[8] The principles governing amendments are trite. It was held in the locus
classics of Moolman v Estate Moolman1 that:
‘[T]he practical rule adopted seems to be that amendments will always be allowed
unless the application to amend 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 it is sought to amend was filed.’
[9] In Trans-Drakensberg Bank Ltd (Under Judicial Management) v
Combined Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D) it was held
(at 641 A) that:
‘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.’
[10] A triable issue is one that, if proved by the evidence foreshadowed in the
application for leave to amend, will be viable or relevant , or, as a matter of
probability, will be proved by the evidence so foreshadowed (See Ciba Geigy
(Pty) Ltd v Lushof Farms (Pty) Ltd en ’n Ander 2002 (2) SA 447 (SCA) 462I –
463 A; Best Drive Holdings (Pty) Ltd and Another v Lewis A
2022/027541)[2026] ZAGPJHC 406 (23 February 2026) para 12).
1 Moolman v Estate Moolman 1927 CPD 27 at 29.
[11] To sum up, a court seized with an application for leave to amend will
exercise of its discretion in favour of granting leave to amend where it is
satisfied a) that the proposed amendment is bona fide, b) that it raises a triable
issue, and c) that it occasions no prejudice to the party affected thereby which
cannot be cured by a postponement and/or an order for costs.
[12] A court seized with an application for leave to amend is required to
exercise its discretion judicially. The discretion to grant or refuse amendments
relates to a Judge’s control of the business in his or her own court, and an
appellate court will not interfere unless the court a quo has failed to exercise its
discretion judicially, i.e., where the decision is capricious, based on a wrong
principle, not reached by unbiased judgment or not based on substantial reasons
(see Ex Parte Neethling and Others 1951 (4) SA 331 (AD) 335B - E; Tjospomie
Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd 1989 (4) SA 31 (TPD) 36
C – I and Ciba Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en ’n Ander (supra)
para 32).
The issue in this appeal
[13] The Court a quo refused leave to amend on the grounds that the proposed
new claims were precluded by the doctrine of election, 2 and further that the
amendment would cause prejudice to the defendant. 3 In effect, the Court a quo
found that the proposed amendment did not raise a triable issue, because the
doctrine of election meant that the new claim s for cancellation were
unsustainable.
2 Paragraphs 35 to 45 of the judgment.
3 Paragraph 47 of the judgment.
[14] The issue in this appeal is whether or not the Court a quo exercised its
discretion judicially in refusing leave to amend on the grounds of election and
prejudice.
The election issue
[15] The Court a quo correctly held that the doctrine of election involves a
waiver, and that the onus rests on the party alleging election / waiver to prove
that the other party had full knowledge of its rights when it allegedly abandoned
them.4
[16] Being a matter of intention, election or waiver can only occur when the
party concerned had full knowledge of the legal right he is said to have waived,
and of the facts from which the right arose (see Coppermoon Trading 13 (Pty)
Ltd v Government of the Province 2020 (3) SA 391 (ECB) at para 26, citing Ex
parte Sussens 1941 TPD 15 at 20, The Road Accident Fund v Mothupi 2000 (4)
SA 38 (SCA) at para 17 and Borstlap v Spangenberg 1974 (3) SA 695 (A) at
704.)
[17] It bears emphasis that the question whether or not a party has made an
election is a question of fact to be decided on the evidence. Watermeyer AJ, as
he then was, explained it thus in Segal v Mazzur 1920 CPD 634 as 644 – 5:
‘Now, when an event occurs which entitles one party to a contract to refuse to carry
out his part of the contract, that party has the choice of two courses. He can either
elect to take advantage of the event or he can elect not to do so. … Whether he has
made an election one way or the other is a question of fact to be decided by the
evidence. If, with knowledge of the breach, he does an unequivocal act which
necessarily implies that he has made his election one way , he will be held to have
4 Paragraph 33 of the judgment.
made his election that way; this is, however, not a rule of law, but a necessary
inference of fact from his conduct.’
[18] In the affidavit in support of the application for leave to amend, the
plaintiff denied that it knew the relevant facts pertaining to the alleged
fraudulent misrepresentation which forms the subject of the amend ed main
claim at the time when it instituted action against the defendant. It alleged that it
only became aware of the alleged fraudulent misrepresentation o n receipt of the
defendant’s response to its request for trial particulars, delivered on 23 February
2023.
[19] It alleged in this regard that it was only on receipt of the trial particulars
that it became apparent to it that the defendant had never intended to purchase
the beacons from Utrackit at the price agreed between the plaintiff and Utrackit,
and that the defendant had always intended to negotiate a more favourable price
with Utrackit. The alleged fraud lay therein that, at the time the BEEF oral
agreement was concluded, the defendant falsely represented to the plaintiff that
it would purchase the beacons from Utrackit at the price agreed between
Utrackit, while knowing that it intended to negotiate a more favourable price
from Utrackit.
[20] The Court a quo found that the plaintiff had indeed exercised an election
not to cancel the MRAs at the time when it issued summons because:
a) the plaintiff did not claim cancellation of the MRAs in the original
particulars of claim, but instead kept the MRAs alive by claiming
damages in lieu of specific performance;5 and
5 Paragraph 35 of the judgment.
b) the plaintiff knew the relevant facts regarding the alleged fraud at
the time when it issued summons, and nonetheless claimed specific
performance rather than claiming cancellation on the grounds of
fraudulent misrepresentation, thereby exercising an election.6
[21] The Court a quo’ s finding that the plaintiff knew the relevant facts
pertaining to the alleged fraud at the time when it issued summons was based
on:
a) correspondence exchanged between the parties before summons
was issued;
b) the fact that the defendant in its plea, delivered on 23 June 2022 ,
denied that it was agreed between the parties that the defendant
would purchase the beacons from Utrackit at the price agreed
between the plaintiff and Utrackit, and expressly pleaded that the
true agreement was that the defendant would purchase the Beacons
from Utrackit at the most favourable price which the defendant
could secure from Utrackit. 7
[22] In our view, the Court a quo misdirected itself in finding , based on the
affidavits in the amendment application, that the plaintiff made an election to
uphold the MRAs , and waived its right to cancel the MRAs, when it instituted
action on 5 April 2022. We say that for the reasons which follow.
[23] Firstly, while it is so that the plaintiff made reference in correspondence
to a fraud, its accusations of fraud were aimed at Utrackit, not the defendant.
The correspondence does not reveal any knowledge on the part of the plaintiff
that the defendant was party to the alleged fraud. The absence of any concrete
6 Paragraphs 39 and 43 of the judgment.
7 Paragraph 37 of the judgment.
knowledge on the part of the plaintiff is evident from the following paragraph in
an email written by the plaintiff’s CEO on 14 May 2021 [emphasis added]:
‘I demand to know on what basis you paid UT rackit R2 million in December 2017, while
apparently seeking no proof, other than UTrackit’s allegedly fraudulent email to the effect
that the products existed, or alternatively proof that Tracetec, presumably Colyn, indicated –
in writing – that it was satisfied that payment could be made. This lack of documentation
over the release of funds, apparently based solely on an allegedly fraudulent e mail from
UTrackit, seems to indicate either negligence, or that your company was a willing party .
Alternatively you can easily supply the authorisation from Tracetec to release the funds, if
such exists.
Please therefore be advised that in the light of your repeated evasions, our Attorneys are now
to assume your company was part of the alleged fraud of R 2m plus interest and therefore
will be part of the summons to sue for recovery of the money paid to UTrackit, plus
damages.’
[24] Secondly, the defendant’s denial of the terms of the BEEF oral agreement
in its plea did not serve to alert the plaintiff to the alleged misrepresentation on
which it seeks to rely in the proposed amended main claim . The alleged false
representation consists of the defendant’s conveying to it that it agreed to
purchase the beacons at the price agreed between the plaintiff and Utrakit, while
secretly harbouring an intention to negotiate a lower price with Utraki t. The
plaintiff states that it only became aware of this alleged mindset on the part of
the defendant when it received the defendant’s reply to its request for trial
particulars, i.e., on 23 February 2023 . In my view, t here was no basis on the
evidence before the Court a quo to r eject its version in that regard out of hand
on the affidavits . This is a matter which should be determined at trial, with the
on the affidavits . This is a matter which should be determined at trial, with the
benefit of viva voce evidence and cross-examination.
[25] Moreover, t he contents of the defendant’s plea, delivered on 23 June
2022, were irrelevant to question of whether the plaintiff had knowledge of the
alleged fraudulent misrepresentation at the time when it issued summons on 5
April 2022, that being the operative time to assess the plaintiff’s knowledge if
one is to infer an election from the contents of the original particulars of claim.
[26] Thirdly, the Court a quo , in our view, failed to appreciate that the first
alternative claim pleaded in the original particulars of claim 8 was exactly that:
an alternative claim. The claim was conditional on the failure of the main claim ,
being a claim in enrichment predicated on the MRAs being void from the
outset. Given the conditional nature of the alternative claim, it cannot, in our
view, be said to amount to an unequivocal, final choice to affirm the MRAs.
Moreover, there is no indication in the affidavit that the plaintiff was aware, at
the time when it issued summons, of its right to cancel the MRAs. In the
absence of evidence in this regard, there was no basis for the Court a quo to find
that the plaintiff had in fact made an election to uphold the MRAs.
[27] Fourthly, the Court a quo , in our view, f ailed to appreciate that , faced
with the factual dispute on the affidavits regarding the plaintiff’s knowledge of
the relevant facts at the time when it issued summons, its task was not to resolve
that dispute, but merely to determine prima facie whether the amendment raised
a triable issue: a court considering an application for leave to amend should not
usurp the role of the trial court and decide the point as if all the evidence were
before the court ( Best Drive Holdings (Pty) Ltd and Another v Lewis (supra)
paras 12 and 20). In our view t he Court a quo’ s approach was misdirected, as it
misconstrued its task.
[28] In our view, the plaintiff met the threshold of a triable issue, and the
amendment ought to have been allowed. The election issue should not have
8 For damages in lieu of performance.
been decided by the Court a quo: it should be raised in the defendant’s plea and
determined at trial.
The prejudice issue
[29] Prejudice is an important consideration in determining whether to grant
an application for leave to amend. If it is shown that the amendment would
cause prejudice to the other party which cannot be cured by a postponement or
costs, leave to amend cannot be granted.
[30] The high-water mark of the prejudice asserted by the defendant is the
speculative allegation that there was ‘ a possibility’ that evidence relevant to the
proposed new claims, which was not relevant to the causes of action previously
pleaded in the original particulars of claim, had been lost, and that witnesses
whose testimony was not relevant ‘may similarly have been lost or their
whereabouts no longer known to the Defendant’.
[28] Having regard to the contents of the documents annexed to the founding
and answering affidavits, it seems to us that the documentary and oral evidence
required to deal with the amended claims is the same as that required to deal
with the claims as originally pleaded.
[29] But even if that is not the case, it seems to us that the Court a quo erred in
attaching too much weight to the entirely speculative nature of the allegations of
prejudice raised by the defendant. The defendant did not identify any lost
evidence or witnesses. It merely raised the possibility of prejudice: it did not
establish actual prejudice.
[30] In our view, therefore, the Court a quo misdirected itself on the facts by
finding that the defendant would indeed suffer prejudice if the application for
the amended were allowed.
Conclusion and costs
[31] It follows from the aforegoing that, in our view, the Court a quo
misdirected itself materially and this Court is at large to intervene and substitute
its decision for that of the Court a quo.
[32] For all the reasons set out above, we are of the view that the plaintiff
ought to be granted leave to amend, as prayed.
[33] The costs of the appeal must follow the result , in accordance with the
usual rule. Regarding the costs of the application for leave to appeal, we are
mindful of the usual rule that the party seeking leave to amend is ordered to pay
the costs of reasonable opposition to the amendment. This is not an inflexible
rule. While we cannot say that the defendant’s opposition was unreasonable, we
do not think that it would be fair to order the plaintiff to pay the defendant’s
costs of the application for leave to amend. In our view, the fairest course of
action in the circumstances would be to order that the costs of the application
for leave to amend be costs in the cause.
[34] We therefore propose the following order:
1. The appeal is upheld with costs, including the cost of counsel on scale B.
2. The order of the court a quo is set aside, and replaced with the following
order:
2.1 The appellant is granted leave to amend its particulars of claim, in
accordance with its notice in terms of Rule 28(1) dated 31 May
2024.
2.2 The costs of the application for leave to amend shall be costs in the
cause.
____________________________
D M DA VIS
JUDGE OF THE HIGH COURT
___________________________
S MTHIMUNYE
ACTING JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
____________________________
G DA SILV A SALIE
JUDGE OF THE HIGH COURT
Appearances:
Counsel for the Appellant : Adv Jacques Malan
Instructed by : Alant, Gell & Martin Attorneys Inc.
Mr Enslin Nel
enslin@agmlaw.co.za
Counsel for the Respondent : Adv Craig Cutler
craigcutler@law.co.za
Instructed by : Ashersons Attorneys
Andrew Goldschmidt
andrew@ashersons.co.za