Buchner N.O and Others v Buchner N.O and Others (906/2022) [2023] ZAECMKHC 33 (16 March 2023)

Buchner N.O and Others v Buchner N.O and Others (906/2022) [2023] ZAECMKHC 33 (16 March 2023)

The court held that the respondent's first claim in reconvention does disclose a cause of action, as the pleadings aver that notice of cancellation was given as provided for in the lease agreement, and the issue of whether service at the domicilium was peremptory is a matter for trial, not for exception. The exception to the first claim was dismissed. Regarding the third claim, the court found that the respondent failed to allege that the Trust was in possession of the cattle at the time the claim was instituted, which is fatal to the rei vindicatio. The exception to this part of the claim was upheld, and the respondent was granted leave to amend. For the alternative claim under the actio...

Citation
[2023] ZAECMKHC 33
Parties
Plaintiff: Estelle Buchner N.O.; Plaintiff: Malcolm Graham MacKenzie N.O.; Plaintiff: Frances Buchner N.O.; Plaintiff: Daneel Ignatius Buchner N.O.; Plaintiff: Werner Corné Buchner N.O.; Defendant: Gideon Gerhardus Buchner N.O.; Defendant: Maria Nel Buchner N.O.; Defendant: Maria Nel Buchner
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
16 March 2023
Case Number
906/2022
Procedural Posture
Exception Application / Exception to Claims in Reconvention
Outcome
Exception to the third claim in reconvention premised on the rei vindicatio is upheld; respondent granted leave to amend within 30 days; all other exceptions dismissed; each party to pay their own costs.
Judges
D.O. Potgieter
Legal Topics
Exception to Pleadings, Lease Cancellation, Domicilium Service, Rei Vindicatio, Actio Ad Exhibendum
Civil Procedure Land and Property Exception to Pleadings Lease Cancellation Domicilium Service Rei Vindicatio Actio Ad Exhibendum

Case Brief

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Parties

Estelle Buchner N.O.

Plaintiff

Malcolm Graham MacKenzie N.O.

Plaintiff

Frances Buchner N.O.

Plaintiff

Daneel Ignatius Buchner N.O.

Plaintiff

Werner Corné Buchner N.O.

Plaintiff

Gideon Gerhardus Buchner N.O.

Defendant

Maria Nel Buchner N.O.

Defendant

Maria Nel Buchner

Defendant

Procedural Posture

Exception Application / Exception to Claims in Reconvention

Legal Issues

  1. 1 Whether the first claim in reconvention discloses a cause of action for delivery of leased cattle or damages based on cancellation of the lease.
  2. 2 Whether the third claim in reconvention discloses a cause of action for return of cattle under the rei vindicatio or damages under the actio ad exhibendum.
  3. 3 Whether the notice of cancellation was validly delivered to the Trust's domicilium as required by the lease agreement.

Ratio Decidendi

The court held that the respondent's first claim in reconvention does disclose a cause of action, as the pleadings aver that notice of cancellation was given as provided for in the lease agreement, and the issue of whether service at the domicilium was peremptory is a matter for trial, not for exception. The exception to the first claim was dismissed. Regarding the third claim, the court found that the respondent failed to allege that the Trust was in possession of the cattle at the time the claim was instituted, which is fatal to the rei vindicatio. The exception to this part of the claim was upheld, and the respondent was granted leave to amend. For the alternative claim under the actio...

Court Disposition

Exception to the third claim in reconvention premised on the rei vindicatio is upheld; respondent granted leave to amend within 30 days; all other exceptions dismissed; each party to pay their own costs.

Orders

  • The exception to the respondent's third claim in reconvention premised upon the rei vindicatio is upheld.
  • The respondent is granted leave to amend the third claim in reconvention within 30 days of the date of this order.