Cloete v Edel Investments (Pty) Ltd (8683/18) [2019] ZAWCHC 25; 2019 (5) SA 486 (WCC) (5 March 2019)

Cloete v Edel Investments (Pty) Ltd (8683/18) [2019] ZAWCHC 25; 2019 (5) SA 486 (WCC) (5 March 2019)

The court held that the defendant's exceptions do not render the plaintiff's claims unsustainable. The plaintiff's particulars of claim contain sufficient averments to allow the defendant to plead, and any issues regarding quantum or mitigation of loss can be addressed during trial. The court accepted that South African law now permits claims for positive interesse in delict, whether based on fraud or negligence, as established in Sechaba Photoscan and confirmed by the Constitutional Court. The distinction between positive and negative interesse is no longer a bar to recovery of damages in delict. The exceptions were dismissed as they did not go to the root of the claims or cause...

Citation
[2019] ZAWCHC 25
Parties
Plaintiff: Tertius Cloete; Defendant: Edel Investments (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 March 2019
Case Number
8683/18
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Defendant's exceptions dismissed with costs.
Judges
P.A.L.Gamble
Legal Topics
Exception to Pleadings, Lease Agreement, Misrepresentation, Positive Interesse, Quantification of Damages, Mitigation of Loss
Civil Procedure Commercial and Corporate Delict Exception to Pleadings Lease Agreement Misrepresentation Positive Interesse Quantification of Damages +1 more

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Parties

Tertius Cloete

Plaintiff

Edel Investments (Pty) Ltd

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action for damages for loss of profits during the relevant periods.
  2. 2 Whether a delictual claim for positive interesse is permissible in South African law.
  3. 3 Whether the plaintiff's pleadings contain sufficient averments to sustain the claims for damages.

Ratio Decidendi

The court held that the defendant's exceptions do not render the plaintiff's claims unsustainable. The plaintiff's particulars of claim contain sufficient averments to allow the defendant to plead, and any issues regarding quantum or mitigation of loss can be addressed during trial. The court accepted that South African law now permits claims for positive interesse in delict, whether based on fraud or negligence, as established in Sechaba Photoscan and confirmed by the Constitutional Court. The distinction between positive and negative interesse is no longer a bar to recovery of damages in delict. The exceptions were dismissed as they did not go to the root of the claims or cause...

Court Disposition

Defendant's exceptions dismissed with costs.

Orders

  • The defendant's exceptions are dismissed with costs.