Dempsey and Another v Kideo Ark (PTY) LTD and Others (23299/2018) [2019] ZAGPPHC 32 (13 February 2019)

Dempsey and Another v Kideo Ark (PTY) LTD and Others (23299/2018) [2019] ZAGPPHC 32 (13 February 2019)

The court found that the second plaintiff, not being a party to the lease agreement, lacked locus standi to enforce its terms. The particulars of claim did not plead any basis for his direct and substantial interest in the matter. However, the court declined to dismiss his claim outright, granting leave to amend the particulars of claim to demonstrate such interest. Regarding the suretyship, the court held that the allegations in the particulars of claim were sufficient to plead fulfilment of the suspensive condition and that the suretyship was embodied in the lease agreement attached to the particulars of claim. The exception was upheld only in respect of the locus standi of the second...

Citation
[2019] ZAGPPHC 32
Parties
Plaintiff: Zeta Dempsey; Plaintiff: Hermanus Petrus Dempsey; Defendant: Kideo Ark (PTY) LTD; Defendant: Anton Gerrit Van Rooyen; Defendant: Elizabeth Johanna Van Rooyen
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 February 2019
Case Number
23299/2018
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld in part; plaintiffs granted leave to amend particulars of claim regarding locus standi; remainder of exceptions dismissed; each party to pay its own costs.
Judges
M Gwala
Legal Topics
Locus Standi, Breach of Contract, Suretyship, Privity of Contract
Civil Procedure Land and Property Locus Standi Breach of Contract Suretyship Privity of Contract

Case Brief

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Parties

Zeta Dempsey

Plaintiff

Hermanus Petrus Dempsey

Plaintiff

Kideo Ark (PTY) LTD

Defendant

Anton Gerrit Van Rooyen

Defendant

Elizabeth Johanna Van Rooyen

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the second plaintiff has locus standi to sue under the lease agreement.
  2. 2 Whether the particulars of claim sufficiently allege fulfilment of the suspensive condition regarding suretyship.
  3. 3 Whether the particulars of claim comply with statutory requirements for suretyship under Section 6 of the General Law Amendment Act 50 of 1956.

Ratio Decidendi

The court found that the second plaintiff, not being a party to the lease agreement, lacked locus standi to enforce its terms. The particulars of claim did not plead any basis for his direct and substantial interest in the matter. However, the court declined to dismiss his claim outright, granting leave to amend the particulars of claim to demonstrate such interest. Regarding the suretyship, the court held that the allegations in the particulars of claim were sufficient to plead fulfilment of the suspensive condition and that the suretyship was embodied in the lease agreement attached to the particulars of claim. The exception was upheld only in respect of the locus standi of the second...

Court Disposition

Exception upheld in part; plaintiffs granted leave to amend particulars of claim regarding locus standi; remainder of exceptions dismissed; each party to pay its own costs.

Orders

  • The exception on the ground that the second plaintiff does not have locus standi is upheld.
  • The plaintiffs are given an opportunity to amend the particulars of claim, if so advised, within 15 days of this order.