Unnecessary legal costs and court resources are wasted when Rules, in the case of substituting a defendant, are informally disposed of. Substitution of a defendant without prior and proper notice is not easily allowed by the courts.
In TRASA v Dlakana 2010, the court refers to Greef v Janet 1986, and states that –
“Where prejudice is possible and where proper notice to the new party is therefore required as in this matter, the courts should insist (as I do) that a defendant cannot be substituted in terms of an amendment process without the formal consent of the new party.”
From this exposition it seems as if a party would need to be aware and consent to the implications/liabilities which await him or her should they take over a company. Paragraph 4 of the former case also makes it clear that proper notification must be given to a new defendant.
In Antonie v Noble Land (Pty) Ltd 2012, in paragraph 8, it held that substitution of parties can be effected through amendment of pleadings, under application of Rule 15 of the Uniform Rules of Court or in terms of the common law. There is a distinction in this regard and depends on the change of status of the substituted party. The following is stated in the case –
“Rule 15 applies where the substitution of a party has become necessary due to a change of status of such party. Where, however, there is no change in status of a party involved, the court will, under its common-law power, grant an application for substitution involving the introduction of a new persona on being satisfied that no prejudice will be caused to the opposite parties which cannot be remedied by an order for costs or some other suitable order, such as a postponement.”
Though the case may differ from another set of facts in that Antonie’s case involved the substitution of an applicant, not a defendant, the principles are clear: there must be no prejudice to the other party which cannot be remedied by a costs order or any suitable one.
The case may be distinguishable in that it dealt with the status of parties (namely, dealing with the trustee of an insolvent estate). This would not likely affect the case where there is no change in the status of any party (Rule 15 would therefore apply). Even if there was (or is) a change in status, substitution can still take place via the common law.
If you need any assistance, do not hesitate to contact us to assist you.
Faure Swanepoel
faure@bbplaw.attorney
Candidate Attorney
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