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REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT

(JOHANNESBURG)

 

CASE NO:2009/8872

In the matter between

 

CORPORATE FINANCE SOLUTIONS (PTY) LTD	PLAINTIFF
And
HOPE RESTORATION MINISTRIES	DEFENDANT

 

Practice - application for leave to amend declaration - Rule of Court 28(4) - proposed amendment concerns plaintiff’s locus standi - does not affect the plaintiff’s cause of action - improper to decide prescription, if arising, at this stage of proceedings - amendment granted - defendant’s opposition to application unreasonable - defendant ordered to pay the costs of the application.

J U D G M E N T

VAN OOSTEN J:

[1] This is an application by the plaintiff for leave to amend its declaration in a pending action between the parties. The defendant filed a notice of opposition to the amendment sought resulting in the plaintiff’s application for leave to amend in terms of Rule 28(4), which is opposed by the defendant.

[2] The plaintiff sues the defendant as a cessionary of SGR Finance CC (SGR) and its cause of action is based on a number of lease agreements pursuant to which the return of the goods leased and payment of arrear rentals are claimed. The locus standi of the plaintiff as cessionary of SGR is the subject matter of the amendment sought. In its original declaration the plaintiff relied on a “main cession agreement” having been concluded on 5 September 2005 between the plaintiff and SGR, pursuant to which the lease agreements, concluded between the defendant and SGR, on which the plaintiff’s cause of action is based, were ceded to the plaintiff. In the proposed amendment the plaintiff disavows reliance on the main cession agreement and instead seeks to rely on it having become a cessionary pursuant to an agreement, partially in writing and partially orally, concluded on 23 May 2008 between SGR and the plaintiff. 

[3] The basis of the defendant’s objection to the proposed amendment is that the plaintiff’s reliance on a cession entirely different from the original cession would result in the introduction of a new cause of action. The contention conflates the basic difference between locus standi and cause of action. The amendment, as rightly conceded by counsel for the defendant, has no bearing on the plaintiff’s cause of action. It merely concerns its locus standi to claim as the cessionary of SGR.

[4] Counsel for the defendant, however, had another string to his bow: he submitted that the amendment, if regard is had to a period of more than 3 years having elapsed form the date of the cession in 2008 until service of the summons in this action on defendant on 4 July 2012, raises the issue of prescription. The contention is untenable: prescription, if it arises, in the absence of all the facts relating thereto, can and should be raised by way of a special plea in the action once the amendment has been effected. This is not the proper time for raising and deciding the prescription issue.

[5] It follows that the amendment ought to be allowed.

[6] It remains to deal with the costs of this application. The essential consideration is whether the defendant’s opposition to the proposed amendment was reasonable. I am unable to find as much: the grounds of objection,right from the outset,were without merit. The plaintiff, as the successful party, is accordingly entitled to the costs thereof.

[7] In the result the following orderis made:

1. The plaintiff is granted leave to amend the plaintiff’s declaration as set out in the plaintiff’s notice of intention to amend dated 4 July 2012.

2. The defendant is ordered to pay the costs of the application to amend. 

 

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR PLAINTIFF ADV JJ DURANDT

PLAINTIFF’S ATTORNEYS JAY MOTHOBI INC

 

COUNSEL FOR DEFENDANT ADV S COHEN

DEFENDANT’S ATTORNEYS  PHUNGULA ATTORNEYS

 

DATE OF HEARING  6 MARCH 2013

DATE OF JUDGMENT 6MARCH 2013

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