Burger v Nair and Another (67056/2018) [2019] ZAGPPHC 169 (31 May 2019)

Burger v Nair and Another (67056/2018) [2019] ZAGPPHC 169 (31 May 2019)

The court found that although there was some confusion between paragraphs 10 and 12 of the particulars of claim, this did not prejudice the first defendant. The withdrawal of the main contractual claim clarified that the plaintiff's claim is now based on unjust enrichment due to the unenforceability of the contract. The payment document annexed as 'B' does not render the pleadings vague or embarrassing, as any uncertainty regarding the payer or the nominated account can be resolved by evidence. The plaintiff made all necessary allegations to sustain a cause of action for unjust enrichment, and the exception was dismissed with costs.

Citation
[2019] ZAGPPHC 169
Parties
Plaintiff: Cornelius Cronje Burger; Defendant: Sugenthiren John Nair; Defendant: Riaan Bredenkamp
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 May 2019
Case Number
67056/2018
Procedural Posture
Exception Application / Exception to Particulars of Claim; Post Withdrawal of Main Contractual Claim
Outcome
Exception dismissed with costs.
Judges
Strydom AJ
Legal Topics
Exception to Pleadings, Unjust Enrichment, Vagueness and Embarrassment, Pleading Requirements
Civil Procedure Commercial and Corporate Exception to Pleadings Unjust Enrichment Vagueness and Embarrassment Pleading Requirements

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Parties

Cornelius Cronje Burger

Plaintiff

Sugenthiren John Nair

Defendant

Riaan Bredenkamp

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim; Post Withdrawal of Main Contractual Claim

Legal Issues

  1. 1 Whether the particulars of claim are vague and embarrassing due to contradictions between paragraphs 10 and 12.
  2. 2 Whether the particulars of claim sufficiently allege the basis for unjust enrichment.
  3. 3 Whether the annexed payment document creates uncertainty regarding enrichment and impoverishment.

Ratio Decidendi

The court found that although there was some confusion between paragraphs 10 and 12 of the particulars of claim, this did not prejudice the first defendant. The withdrawal of the main contractual claim clarified that the plaintiff's claim is now based on unjust enrichment due to the unenforceability of the contract. The payment document annexed as 'B' does not render the pleadings vague or embarrassing, as any uncertainty regarding the payer or the nominated account can be resolved by evidence. The plaintiff made all necessary allegations to sustain a cause of action for unjust enrichment, and the exception was dismissed with costs.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed.
  • The first defendant is ordered to pay the costs of the exception.