Engen Petroleum Ltd v Jacques Vlok Transport Bk en Anders (3110/2010) [2011] ZAFSHC 188 (23 November 2011)

Engen Petroleum Ltd v Jacques Vlok Transport Bk en Anders (3110/2010) [2011] ZAFSHC 188 (23 November 2011)

The court held that the cession agreement in question was a cession in securitatem debiti, which, according to prevailing legal principles, requires the existence of a principal debt between the cedent (third defendant) and the cessionary (plaintiff). The plaintiff's particulars of claim failed to plead the existence of such a debt or that the third defendant was in default, which are essential facts for the plaintiff to have locus standi to claim against the first and second defendants as debtors of the third defendant. The absence of these averments rendered the particulars of claim vague and embarrassing to the extent that the defendants were prejudiced in formulating their defence....

Citation
[2011] ZAFSHC 188
Parties
Plaintiff: Engen Petroleum Limited; Defendant: Jacques Vlok Transport BK; Defendant: Jacques Vlok; Defendant: Afric Oil (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 November 2011
Case Number
3110/2010
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld; particulars of claim set aside; plaintiff granted leave to amend within twenty days; costs awarded against plaintiff.
Judges
C Van Zyl, R
Legal Topics
Exception Procedure, Cession in Securitatem Debiti, Pleading Requirements, Vagueness and Embarrassment, Cause of Action, Agency
Civil Procedure Commercial and Corporate Exception Procedure Cession in Securitatem Debiti Pleading Requirements Vagueness and Embarrassment Cause of Action Agency

Case Brief

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Parties

Engen Petroleum Limited

Plaintiff

Jacques Vlok Transport BK

Defendant

Jacques Vlok

Defendant

Afric Oil (Pty) Ltd

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 to the extent that they prejudice the defendants.
  2. 2 Whether the particulars of claim disclose a cause of action against the defendants in light of the cession in securitatem debiti.
  3. 3 Whether the plaintiff was required to plead the existence of a principal debt between itself and the third defendant before claiming against the first and second defendants.

Ratio Decidendi

The court held that the cession agreement in question was a cession in securitatem debiti, which, according to prevailing legal principles, requires the existence of a principal debt between the cedent (third defendant) and the cessionary (plaintiff). The plaintiff's particulars of claim failed to plead the existence of such a debt or that the third defendant was in default, which are essential facts for the plaintiff to have locus standi to claim against the first and second defendants as debtors of the third defendant. The absence of these averments rendered the particulars of claim vague and embarrassing to the extent that the defendants were prejudiced in formulating their defence....

Court Disposition

Exception upheld; particulars of claim set aside; plaintiff granted leave to amend within twenty days; costs awarded against plaintiff.

Orders

  • The exception by the first and second defendants to the plaintiff's particulars of claim on the basis of vagueness and embarrassment is upheld, with costs.
  • The plaintiff's particulars of claim are set aside.