Bam v Eastern Cape Development Corporation and Another (1787/2016) [2017] ZAECMHC 18 (29 June 2017)

Bam v Eastern Cape Development Corporation and Another (1787/2016) [2017] ZAECMHC 18 (29 June 2017)

The court held that the amended particulars of claim are deficient and lack the necessary averments to sustain a cause of action in delict. The plaintiff failed to plead a factual basis for the exclusion of a tacit hypothec, the existence of a duty of care owed by the first defendant, and the elements of wrongfulness and foreseeability. The particulars of claim also do not provide sufficient detail regarding the quantum of damages to enable the defendant to plead or make a tender. Accordingly, the exception is upheld. However, given the substantial quantum claimed and the poor standard of pleading, the court grants the plaintiff leave to amend the particulars of claim within twenty days,...

Citation
[2017] ZAECMHC 18
Parties
Plaintiff: Pumelele Ngubenani Bam; Defendant: Eastern Cape Development Corporation; Defendant: Tyeks Security Company
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
29 June 2017
Case Number
1787/2016
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim
Outcome
Exception upheld; plaintiff granted leave to amend particulars of claim within twenty days; costs awarded against plaintiff.
Judges
RWN Brooks
Legal Topics
Exception to Pleading, Duty of Care, Tacit Hypothec, Wrongfulness, Quantum of Damages
Civil Procedure Delict Exception to Pleading Duty of Care Tacit Hypothec Wrongfulness Quantum of Damages

Case Brief

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Parties

Pumelele Ngubenani Bam

Plaintiff

Eastern Cape Development Corporation

Defendant

Tyeks Security Company

Defendant

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the amended particulars of claim disclose sufficient averments to sustain a cause of action in delict against the defendants.
  2. 2 Whether the first defendant owed a duty of care to the plaintiff regarding the safekeeping of his property on the premises.
  3. 3 Whether the particulars of claim adequately plead the exclusion of a tacit hypothec over the plaintiff's property.

Ratio Decidendi

The court held that the amended particulars of claim are deficient and lack the necessary averments to sustain a cause of action in delict. The plaintiff failed to plead a factual basis for the exclusion of a tacit hypothec, the existence of a duty of care owed by the first defendant, and the elements of wrongfulness and foreseeability. The particulars of claim also do not provide sufficient detail regarding the quantum of damages to enable the defendant to plead or make a tender. Accordingly, the exception is upheld. However, given the substantial quantum claimed and the poor standard of pleading, the court grants the plaintiff leave to amend the particulars of claim within twenty days,...

Court Disposition

Exception upheld; plaintiff granted leave to amend particulars of claim within twenty days; costs awarded against plaintiff.

Orders

  • The first defendant’s exception is upheld.
  • The plaintiff is given leave to amend his amended particulars of claim within twenty days of the date of this order, failing which the first defendant shall be entitled to approach the court on notice of motion for the dismissal of the plaintiff’s action against it.