Dyibishe N.O. v Shenxane and Others (3443/2021) [2022] ZAECMKHC 92 (1 November 2022)

Dyibishe N.O. v Shenxane and Others (3443/2021) [2022] ZAECMKHC 92 (1 November 2022)

The court held that the particulars of claim are excipiable as they do not sustain the causes of action for declaration of ownership and eviction. The plaintiff, as executrix, failed to allege ownership of the property and did not clarify whether transfer was sought in her personal capacity or as executrix. The relief for transfer is legally unsustainable, and the pleading is vague and embarrassing, failing to comply with Rule 18(4). The claim for eviction is also insupportable due to non-compliance with statutory requirements. The exception is upheld on a point of law, and the plaintiff is granted leave to amend the particulars of claim.

Citation
[2022] ZAECMKHC 92
Parties
Plaintiff: Ntomboxolo Dyibishe N.O.; Defendant: Nonkulelekho Shenxane; Defendant: Makhaya Xhalabile; Defendant: Nomathamsanqa Dyibishe
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
1 November 2022
Case Number
3443/2021
Procedural Posture
Exception Proceedings / Exception to Particulars of Claim
Outcome
Exception upheld; plaintiff granted leave to amend particulars of claim; costs awarded to first defendant.
Judges
Rugunanan
Legal Topics
Exception Proceedings, Rei Vindicatio, Eviction, Deceased Estate Administration, Pleading Requirements
Civil Procedure Land and Property Exception Proceedings Rei Vindicatio Eviction Deceased Estate Administration Pleading Requirements

Case Brief

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Parties

Ntomboxolo Dyibishe N.O.

Plaintiff

Nonkulelekho Shenxane

Defendant

Makhaya Xhalabile

Defendant

Nomathamsanqa Dyibishe

Defendant

Procedural Posture

Exception Proceedings / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim sustain causes of action for declaration of ownership and eviction.
  2. 2 Whether the particulars of claim are vague and embarrassing.
  3. 3 Whether the plaintiff has locus standi to claim transfer and eviction as executrix.

Ratio Decidendi

The court held that the particulars of claim are excipiable as they do not sustain the causes of action for declaration of ownership and eviction. The plaintiff, as executrix, failed to allege ownership of the property and did not clarify whether transfer was sought in her personal capacity or as executrix. The relief for transfer is legally unsustainable, and the pleading is vague and embarrassing, failing to comply with Rule 18(4). The claim for eviction is also insupportable due to non-compliance with statutory requirements. The exception is upheld on a point of law, and the plaintiff is granted leave to amend the particulars of claim.

Court Disposition

Exception upheld; plaintiff granted leave to amend particulars of claim; costs awarded to first defendant.

Orders

  • The first defendant’s exception is upheld to the extent set out in this judgment.
  • The plaintiff is granted leave to amend the particulars of claim to remedy the defects within twenty (20) days from the date hereof.