Breetzke N.O v Alexander and Others (12922/2014P) [2018] ZAKZPHC 64 (9 November 2018)

Breetzke N.O v Alexander and Others (12922/2014P) [2018] ZAKZPHC 64 (9 November 2018)

The court held that the plaintiffs failed to plead sufficient facts to establish a delictual claim for pure economic loss against the second defendant. Mere knowledge of the first defendant's breach of trust and participation in the transaction does not render the second defendant's conduct wrongful. The second defendant, as a separate corporate entity, engaged in commercial activity that is not prima facie wrongful. The plaintiffs did not allege facts to justify piercing the corporate veil or to establish an independent delictual claim against the second defendant. Accordingly, the exception was upheld and the claim against the second defendant was struck out.

Citation
[2018] ZAKZPHC 64
Parties
Plaintiff: Gavin Anothony Breetzke N.O.; Plaintiff: Michael John Breetzke N.O.; Plaintiff: Margaret Anne Breetzke N.O.; Defendant: Robert Edward Alexander; Defendant: Ziningi Properties (Pty) Ltd; Defendant: Rodney John Trotter N.O.; Defendant: Brett Dennis Berriman N.O.; Defendant: Angela Claire Alexander N.O.
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
9 November 2018
Case Number
12922/2014P
Procedural Posture
Exception Application / Exception to Amended Particulars of Claim
Outcome
Exception upheld; claim against the second defendant struck out; plaintiffs granted leave to amend; costs awarded against plaintiffs.
Judges
Vahed
Legal Topics
Exception to Particulars of Claim, Pure Economic Loss, Fiduciary Duty, Corporate Separateness, Wrongfulness, Lex Aquilia
Civil Procedure Delict Commercial and Corporate Exception to Particulars of Claim Pure Economic Loss Fiduciary Duty Corporate Separateness Wrongfulness +1 more

Case Brief

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Parties

Gavin Anothony Breetzke N.O.

Plaintiff

Michael John Breetzke N.O.

Plaintiff

Margaret Anne Breetzke N.O.

Plaintiff

Robert Edward Alexander

Defendant

Ziningi Properties (Pty) Ltd

Defendant

Rodney John Trotter N.O.

Defendant

Brett Dennis Berriman N.O.

Defendant

Angela Claire Alexander N.O.

Defendant

Procedural Posture

Exception Application / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the amended particulars of claim disclose a cause of action against the second defendant.
  2. 2 Whether the pleadings contain sufficient allegations to sustain a delictual claim for pure economic loss against the second defendant.
  3. 3 Whether the second defendant's knowing participation in the first defendant's breach of trust constitutes actionable wrongfulness under the Lex Aquilia.

Ratio Decidendi

The court held that the plaintiffs failed to plead sufficient facts to establish a delictual claim for pure economic loss against the second defendant. Mere knowledge of the first defendant's breach of trust and participation in the transaction does not render the second defendant's conduct wrongful. The second defendant, as a separate corporate entity, engaged in commercial activity that is not prima facie wrongful. The plaintiffs did not allege facts to justify piercing the corporate veil or to establish an independent delictual claim against the second defendant. Accordingly, the exception was upheld and the claim against the second defendant was struck out.

Court Disposition

Exception upheld; claim against the second defendant struck out; plaintiffs granted leave to amend; costs awarded against plaintiffs.

Orders

  • The defendants’ exception dated 5 April 2018 is upheld.
  • The claim and prayer against the second defendant is struck out.