Captain Stirling Investments 51 (Pty) Ltd v Koskas Tuisnywerheid CC and Others (55705/08) [2009] ZAGPPHC 383 (23 October 2009)
The court found that the defendants' plea and counterclaim were vague and embarrassing and did not disclose a defence or cause of action. The defendants failed to remove the causes of complaint after notice was given and did not proceed with an amendment. The exceptions were upheld on the grounds specified in the...
Source-derived case information.
- Citation
- [2009] ZAGPPHC 383
- Parties
- Plaintiff: Captain Stirling Investments 51 (Pty) Ltd; Defendant: Koskas Tuisnywerheid CC; Defendant: Johannes Nicolaas Jacobus Mouton; Defendant: Aafke Mouton
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 55705/08
- Procedural Posture
- Civil Procedure / Exception to Plea and Counterclaim
- Outcome
- Exceptions upheld; plea and counterclaim set aside; leave to amend granted; costs awarded against defendants.
- Judges
- B.R. Southwood
- Legal Topics
- Exception Procedure, Vague and Embarrassing Pleading, Failure to Disclose Defence, Amendment of Pleadings
Source-derived case record
Summary, issues, holding and outcome
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Parties
Captain Stirling Investments 51 (Pty) Ltd
Plaintiff
Koskas Tuisnywerheid CC
Defendant
Johannes Nicolaas Jacobus Mouton
Defendant
Aafke Mouton
Defendant
Procedural Posture
Civil Procedure / Exception to Plea and Counterclaim
Legal Issues
- 1 Whether the defendants' plea and counterclaim are vague and embarrassing.
- 2 Whether the plea and counterclaim disclose a defence or cause of action.
- 3 Whether the exceptions to the plea and counterclaim should be upheld.
Ratio Decidendi
The court found that the defendants' plea and counterclaim were vague and embarrassing and did not disclose a defence or cause of action. The defendants failed to remove the causes of complaint after notice was given and did not proceed with an amendment. The exceptions were upheld on the grounds specified in the notice of exception. The court set aside the plea and counterclaim and granted the defendants leave to amend within one month, ordering them to pay the costs of the exception.
Court Disposition
Exceptions upheld; plea and counterclaim set aside; leave to amend granted; costs awarded against defendants.
Orders
- The exceptions to the defendants' plea and counterclaim are upheld and the plea and counterclaim are set aside.
- The defendants are given leave, if so advised, to amend their plea and counterclaim in accordance with Rule 28 within 1 month of the date of this order.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
DATE: 2009-10-23
CASE NUMBER: 55705/08
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
In the matter between:
CAPTAIN STIRLING INVESTMENTS 51 (PTY) LTD Plaintiff
and
KOSKAS TUISNYWERHEID CC First
Defendant
JOHANNES NICOLAAS JACOBUS MOUTON Second
Defendant
AAFKE MOUTON Third
Defendant
JUDGMENT
SOUTHWOOD J
[1] The plaintiff excepts to the defendants' plea and counterclaim on the grounds that they are vague and embarrassing and/or do not disclose a defence or cause of action. The plaintiff gave notice to the defendants in terms of the Rule 23(1) to remove the causes of complaint and the defendants failed to do so. On 29 April 2009 the plaintiff delivered its notice of exception to the defendants’ plea and counterclaim.
[2] On 7 July 2009 the defendants delivered a notice of amendment of their plea and counterclaim but after the plaintiff gave notice of its objection to the amendment sought the defendants did not proceed with an application to amend. The defendants appear to have abandoned their intention to amend.
[3] The defendants did not indicate that they intended to oppose the exceptions or appear to oppose the exceptions.
[4] In my view the plea and counterclaim are vague and embarrassing and do not disclose a defence or cause of action and the exceptions
should be upheld on the grounds set out in paras 1.1-1.4; 2.1-2.3; 3.1-3.4; 4.1-4.6; 5.1-5.5; 7.1-7.6 and 8.1-8.4 of the notice of exception.
Order
[5] I The exceptions to the defendants' plea and counterclaim are upheld and the plea and counterclaim are set aside;
II The defendants are given leave, if so advised, to amend their plea and counterclaim in accordance with Rule 28 within 1 month of the date of this order
III The defendants are ordered, jointly and severally, to pay the costs of the exception
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
CASE NO: 55705/08
HEARD ON: 14 October 2009
FOR THE PLAINTIFF: ADV. M WELZ
INSTRUCTED BY: Waks Silent & Geach Attorneys
DATE OF JUDGMENT: 23 October 2009