Fairleads Electrical CC v Mare (12587/16) [2017] ZAGPPHC 343 (28 March 2017)

Fairleads Electrical CC v Mare (12587/16) [2017] ZAGPPHC 343 (28 March 2017)

The court found that the defendant's exception was based on an inference that the plaintiff was a home builder, which was disputed by the plaintiff. The pleadings and annexures did not conclusively establish that the plaintiff was a home builder as defined in the Act. The plaintiff's claim was premised on a verbal agreement for finishing work and supply of goods, not home building. The court held that it would be unjust to make a finding against the plaintiff without affording an opportunity to present all relevant facts at trial. Since evidence could be led to support the plaintiff's cause of action, the particulars of claim were not excepiable and the exception was dismissed.

Citation
[2017] ZAGPPHC 343
Parties
Plaintiff: Fairleads Electrical CC; Defendant: Dietlof Mare
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 March 2017
Case Number
12587/16
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Defendant's exception dismissed; costs awarded to plaintiff.
Judges
Nkosi
Legal Topics
Exception Procedure, Cause of Action, Housing Consumer Protection Measures Act, Verbal Agreement, Pleading Requirements
Civil Procedure Exception Procedure Cause of Action Housing Consumer Protection Measures Act Verbal Agreement Pleading Requirements

Case Brief

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Parties

Fairleads Electrical CC

Plaintiff

Dietlof Mare

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Does the plaintiff's particulars of claim disclose a cause of action?
  2. 2 Is the plaintiff a 'home builder' as defined in the Housing Consumers Protection Measures Act 95 of 1998?
  3. 3 Is the exception sustainable based on the pleadings and annexures?

Ratio Decidendi

The court found that the defendant's exception was based on an inference that the plaintiff was a home builder, which was disputed by the plaintiff. The pleadings and annexures did not conclusively establish that the plaintiff was a home builder as defined in the Act. The plaintiff's claim was premised on a verbal agreement for finishing work and supply of goods, not home building. The court held that it would be unjust to make a finding against the plaintiff without affording an opportunity to present all relevant facts at trial. Since evidence could be led to support the plaintiff's cause of action, the particulars of claim were not excepiable and the exception was dismissed.

Court Disposition

Defendant's exception dismissed; costs awarded to plaintiff.

Orders

  • The defendant's exception is dismissed.
  • The defendant is to pay the plaintiff's costs of this application.