Dorbyl Limited v Gouws (51752/2008, 27796/2008) [2009] ZAGPJHC 59 (4 November 2009)

Dorbyl Limited v Gouws (51752/2008, 27796/2008) [2009] ZAGPJHC 59 (4 November 2009)

The court held that the plaintiff's particulars of claim are vague and embarrassing on two grounds. First, the plaintiff relied on a partly written, partly tacit agreement without pleading the conduct and circumstances giving rise to the tacit portion, which is required for the defendant to know the case he must meet. Rule 18(7) does not excuse this requirement when a tacit contract is pleaded as such. Second, the agreement annexed as 'A' is subject to a suspensive condition—the approval by the non-executive directors of the Board. The plaintiff failed to plead that this condition was fulfilled, which is necessary to establish the existence of binding rights and obligations under the...

Citation
[2009] ZAGPJHC 59
Parties
Plaintiff: Dorbyl Limited; Defendant: Marthinus Gouws
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 November 2009
Case Number
51752/2008, 27796/2008
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exceptions upheld; plaintiff's particulars of claim found vague and embarrassing.
Judges
Blieden
Legal Topics
Vague and Embarrassing Pleading, Tacit Contract, Suspensive Condition, Fiduciary Duty, Management Participation Scheme
Civil Procedure Commercial and Corporate Vague and Embarrassing Pleading Tacit Contract Suspensive Condition Fiduciary Duty Management Participation Scheme

Case Brief

Summary, issues, holding and outcome

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Parties

Dorbyl Limited

Plaintiff

Marthinus Gouws

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim are vague and embarrassing due to insufficient pleading of a partly written, partly tacit agreement.
  2. 2 Whether the plaintiff failed to plead fulfilment of a suspensive condition in the Management Participation Scheme Agreement.

Ratio Decidendi

The court held that the plaintiff's particulars of claim are vague and embarrassing on two grounds. First, the plaintiff relied on a partly written, partly tacit agreement without pleading the conduct and circumstances giving rise to the tacit portion, which is required for the defendant to know the case he must meet. Rule 18(7) does not excuse this requirement when a tacit contract is pleaded as such. Second, the agreement annexed as 'A' is subject to a suspensive condition—the approval by the non-executive directors of the Board. The plaintiff failed to plead that this condition was fulfilled, which is necessary to establish the existence of binding rights and obligations under the...

Court Disposition

Exceptions upheld; plaintiff's particulars of claim found vague and embarrassing.

Orders

  • The two exceptions to the plaintiff's particulars of claim as being vague and embarrassing are upheld.
  • The plaintiff is given 20 days within which to amend its particulars of claim.