D.J.M v L.M (Leave to Appeal) (22730/2017) [2021] ZAGPPHC 495 (2 August 2021)

D.J.M v L.M (Leave to Appeal) (22730/2017) [2021] ZAGPPHC 495 (2 August 2021)

The court found that the applicant's omission to allege the Master's approval in the particulars of claim was the basis for upholding the exception. However, the court accepted that another court might find that this issue should be determined by evidence at trial rather than on the pleadings, and that the applicant should have been given an opportunity to amend the particulars of claim. Accordingly, leave to appeal was granted on the second ground of exception and the associated costs order, as another court may reach a different conclusion regarding the excipiability of the claim and the procedural fairness of dismissing all claims without leave to amend.

Citation
[2021] ZAGPPHC 495
Parties
Applicant: M[....] D J; Respondent: M[....] L
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 August 2021
Case Number
22730/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim on Exception
Outcome
Leave to appeal is granted to the Full Court of this Division on the second ground of exception and the costs order.
Judges
E.M Kubushi
Legal Topics
Exception Procedure, Curator Bonis, Locus Standi, Master of High Court Approval
Civil Procedure Family and Children Exception Procedure Curator Bonis Locus Standi Master of High Court Approval

Case Brief

Summary, issues, holding and outcome

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Parties

M[....] D J

Applicant

M[....] L

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim on Exception

Legal Issues

  1. 1 Whether the applicant's particulars of claim were excipiable for failing to allege the Master's approval to institute action.
  2. 2 Whether the applicant should have been granted an opportunity to amend the particulars of claim.
  3. 3 Whether the costs order should stand if only one ground of exception is upheld.

Ratio Decidendi

The court found that the applicant's omission to allege the Master's approval in the particulars of claim was the basis for upholding the exception. However, the court accepted that another court might find that this issue should be determined by evidence at trial rather than on the pleadings, and that the applicant should have been given an opportunity to amend the particulars of claim. Accordingly, leave to appeal was granted on the second ground of exception and the associated costs order, as another court may reach a different conclusion regarding the excipiability of the claim and the procedural fairness of dismissing all claims without leave to amend.

Court Disposition

Leave to appeal is granted to the Full Court of this Division on the second ground of exception and the costs order.

Orders

  • Leave to appeal is granted to the Full Court of this Division only in respect of the second ground of exception relating to the issue of the consent of the Master of the High Court and the cost order.
  • Costs are costs in the appeal.