Cilliers and Others v Steenkamp and Others (1386/2014) [2015] ZAWCHC 177 (25 November 2015)

Cilliers and Others v Steenkamp and Others (1386/2014) [2015] ZAWCHC 177 (25 November 2015)

The court held that the plaintiffs failed to plead primary facts establishing a legal duty on the liquidators of KCM to take control of its wholly owned subsidiary, Bo-Karoo. The Companies Act does not confer such powers on liquidators, and the legal distinction between holding and subsidiary companies must be maintained. The claims for pure economic loss lack the necessary averments to sustain them, and fault was not adequately pleaded in relation to the approval of the sale of assets. The particulars of claim are therefore excipiable for failing to disclose a cause of action or for being vague and embarrassing, causing severe prejudice to the excipients. The exception is upheld on all...

Citation
[2015] ZAWCHC 177
Parties
Plaintiff: Johann Jacobus Cilliers; Plaintiff: Robert Phillips & Others; Defendant: Jurgen Johannes Steenkamp; Defendant: Albert Ivan Surmany & Others
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 November 2015
Case Number
1386/2014
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim
Outcome
Exception upheld; plaintiffs granted leave to amend particulars of claim by 29 January 2016; costs awarded to third and sixth defendants.
Judges
J Cloete
Legal Topics
Liquidator Duties, Fiduciary Duty, Pure Economic Loss, Exception Procedure, Statutory Duties, Company Liquidation
Civil Procedure Commercial and Corporate Delict Liquidator Duties Fiduciary Duty Pure Economic Loss Exception Procedure Statutory Duties +1 more

Case Brief

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Parties

Johann Jacobus Cilliers

Plaintiff

Robert Phillips & Others

Plaintiff

Jurgen Johannes Steenkamp

Defendant

Albert Ivan Surmany & Others

Defendant

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the liquidators of KCM owed a legal duty to take control of its wholly owned subsidiary, Bo-Karoo.
  2. 2 Whether the particulars of claim disclose a cause of action for pure economic loss against the liquidators.
  3. 3 Whether the claims as pleaded are vague and embarrassing and prejudicial to the excipients.

Ratio Decidendi

The court held that the plaintiffs failed to plead primary facts establishing a legal duty on the liquidators of KCM to take control of its wholly owned subsidiary, Bo-Karoo. The Companies Act does not confer such powers on liquidators, and the legal distinction between holding and subsidiary companies must be maintained. The claims for pure economic loss lack the necessary averments to sustain them, and fault was not adequately pleaded in relation to the approval of the sale of assets. The particulars of claim are therefore excipiable for failing to disclose a cause of action or for being vague and embarrassing, causing severe prejudice to the excipients. The exception is upheld on all...

Court Disposition

Exception upheld; plaintiffs granted leave to amend particulars of claim by 29 January 2016; costs awarded to third and sixth defendants.

Orders

  • The third and sixth defendants’ exception is upheld.
  • The plaintiffs are given leave to further amend the particulars of claim by not later than 29 January 2016.