Of recent, KISCH IP has tasted tremendous success in the Supreme Court of Appeal. In one such an instance, the court found that an order amending the incorrect description of a defendant in a summons does not amount to substitution of the defendant, in a case where the summons was served at the offices and on the director shared by the incorrectly cited party and the true defendant, while the true defendant was clearly recognisable from the original summons.
In this case, action was instituted by the respondents (plaintiff in the court a quo) based on amongst others, breach of contract, unlawful competition and unauthorised use of the respondents' proprietary information. The summons served in respect of the action cited the defendants as FOXLAKE INVESTMENTS (PTY) LTD ("Foxlake") t/a FOXWAY DEVELOPMENTS (PTY) LTD ("Foxway"). It later transpired that Foxlake and Foxway were actually two separate legal entities, despite their sharing a common office building, receptionist and managing director. In reality the plaintiffs claim should have been against Foxway. An application to effect amendment of the cited defendant was granted by the High Court.
The defendant appealed to this decision and the Supreme Court of Appeal's judgement, dismissing the appeal and clearing the way for the plaintiff to continue with its action against the defendant, was delivered on 1 April 2016.
The appellant (defendant a quo) contested that such an amendment would amount to a substitution of the defendant, and that Foxway would be prejudiced by this. It was further contested that the two entities conduct business completely separately from each other and are unaware of each other's dealings. The service of the summons on Foxlake trading as Foxway was, according to the defendant's version, a legal impossibility. It was thus contended that the service of the summons did not interrupt prescription and that the claim against Foxway had in fact prescribed. This would have ended any further proceedings in the action.
The respondents (plaintiffs a quo) however contested that Foxway's name appeared on the initial summons that was served on Foxway's address, that Foxway's managing director had received the summons and that the proposed amendment does not seek to introduce a new legal entity but was rather in the nature of correcting a misnomer. Counsel for the respondents raised a question to the court to determine who the real appellant was. Was it Foxlake, counsel argued, the appeal would have been brought by one party, in defence of an independent third party's rights. Was it Foxway on the other hand, it was argued that the appellant would have in effect conceded that Foxway was in fact a party to the matter, for otherwise there would have been no basis for Foxway to appeal the matter. This question was left unanswered by the appellant.
The court found that Foxway recognised its connection with the claim notwithstanding the error in the citation of the parties. In Blaauberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd  ZASCA 144; 2004 (3) SA 160 (SCA) it was stated that "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." The court went on to find that prescription had indeed been interrupted by the service of the summons and that the amendment must be allowed to encourage the ventilation of real disputes between the creditor and the debtor.
There is a Danish proverb that states: "Relatives are the worst friends, said the fox as the dogs took after him." It seems like sometimes, keeping it in the family, doesn't solve all of your problems.
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