Flemix and Another v Russel; In re: Russel v Flemix and Others (44521/2014) [2016] ZAGPJHC 182 (6 July 2016)

Flemix and Another v Russel; In re: Russel v Flemix and Others (44521/2014) [2016] ZAGPJHC 182 (6 July 2016)

The exception raised by the Excipients is dismissed because the alleged non-joinder or misjoinder does not appear ex facie the summons or particulars of claim. The Excipients' reliance on extraneous documents and facts outside the pleadings is impermissible at the exception stage. The particulars of claim disclose a valid cause of action against the Excipients, and the involvement of Thrive Mzantsi Trading CC is not apparent from the contract or pleadings. The proper procedure for raising such a defence would have been a special plea or joinder application, not an exception. The conduct of the Excipients in persisting with the exception was unreasonable and warrants a punitive costs order.

Citation
[2016] ZAGPJHC 182
Parties
Applicant: Jacobus Johannes (Kobus) Flemix; Applicant: Beverly Norma Flemix; Respondent: Keith Michael Russel
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 July 2016
Case Number
44521/2014
Procedural Posture
Civil Application / Exception to Particulars of Claim; Interlocutory Application
Outcome
Exception dismissed with costs on the attorney and client scale.
Judges
G Shakoane
Legal Topics
Exception Procedure, Non Joinder, Misjoinder, Latent Defects, Housing Consumers Protection Measures Act
Civil Procedure Land and Property Exception Procedure Non Joinder Misjoinder Latent Defects Housing Consumers Protection Measures Act

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Parties

Jacobus Johannes (Kobus) Flemix

Applicant

Beverly Norma Flemix

Applicant

Keith Michael Russel

Respondent

Procedural Posture

Civil Application / Exception to Particulars of Claim; Interlocutory Application

Legal Issues

  1. 1 Whether the exception raised by the Excipients on grounds of non-joinder or misjoinder is permissible in law.
  2. 2 Whether Thrive Mzantsi Trading CC should have been joined as a party to the proceedings.
  3. 3 Whether the particulars of claim disclose a cause of action against the Excipients.

Ratio Decidendi

The exception raised by the Excipients is dismissed because the alleged non-joinder or misjoinder does not appear ex facie the summons or particulars of claim. The Excipients' reliance on extraneous documents and facts outside the pleadings is impermissible at the exception stage. The particulars of claim disclose a valid cause of action against the Excipients, and the involvement of Thrive Mzantsi Trading CC is not apparent from the contract or pleadings. The proper procedure for raising such a defence would have been a special plea or joinder application, not an exception. The conduct of the Excipients in persisting with the exception was unreasonable and warrants a punitive costs order.

Court Disposition

Exception dismissed with costs on the attorney and client scale.

Orders

  • The exception is dismissed.
  • The Excipients are to pay the costs of the exception on the attorney and client scale.