Cooke v Thermo-Facades (Pty) Limited (1653/2019) [2019] ZAGPJHC 275 (8 August 2019)

Cooke v Thermo-Facades (Pty) Limited (1653/2019) [2019] ZAGPJHC 275 (8 August 2019)

The court found that the plaintiff's particulars of claim, when considered as a whole, are sufficiently clear and provide the necessary averments to sustain a cause of action. The amount claimed is ascertainable from the facts pleaded, and the fulfillment of conditions precedent is adequately addressed. Alleged non-compliance with the National Credit Act is a defence to be pleaded and not a ground for exception. The excipient failed to demonstrate that the particulars are vague and embarrassing or that they cause real prejudice. Accordingly, the exception was dismissed with costs.

Citation
[2019] ZAGPJHC 275
Parties
Applicant: Kerry Wyndham Cooke; Respondent: Thermo-Facades (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 August 2019
Case Number
1653/2019
Procedural Posture
Civil Application / Exception to Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
Twala M L
Legal Topics
Exception Procedure, Vague and Embarrassing Pleading, Cause of Action, National Credit Act Compliance
Civil Procedure Exception Procedure Vague and Embarrassing Pleading Cause of Action National Credit Act Compliance

Case Brief

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Parties

Kerry Wyndham Cooke

Applicant

Thermo-Facades (Pty) Limited

Respondent

Procedural Posture

Civil Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim are vague and embarrassing and lack necessary averments to sustain a cause of action.
  2. 2 Whether the amount claimed is clearly ascertainable from the particulars of claim.
  3. 3 Whether non-compliance with sections 129 and 130 of the National Credit Act can be raised by way of exception.

Ratio Decidendi

The court found that the plaintiff's particulars of claim, when considered as a whole, are sufficiently clear and provide the necessary averments to sustain a cause of action. The amount claimed is ascertainable from the facts pleaded, and the fulfillment of conditions precedent is adequately addressed. Alleged non-compliance with the National Credit Act is a defence to be pleaded and not a ground for exception. The excipient failed to demonstrate that the particulars are vague and embarrassing or that they cause real prejudice. Accordingly, the exception was dismissed with costs.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception to the plaintiff's particulars of claim is dismissed with costs.