Freyssenet Posten (Pty) Ltd and Another v Georgious N.O. and Others (5406/2014) [2017] ZAFSHC 118 (3 July 2017)

Freyssenet Posten (Pty) Ltd and Another v Georgious N.O. and Others (5406/2014) [2017] ZAFSHC 118 (3 July 2017)

The court found that the plaintiffs' particulars of claim, when read as a whole and together with the annexed documents and correspondence, disclose a cause of action with sufficient clarity and particularity. The excipients failed to demonstrate that the pleadings are vague and embarrassing to the extent that they would suffer prejudice if compelled to plead. The contractual relationship and obligations, although complicated by the absence of the schedule, are sufficiently articulated through the tender documents, pro forma contract, and correspondence. The exception is therefore not excipiable on every reasonable interpretation and does not warrant striking out the particulars of claim.

Citation
[2017] ZAFSHC 118
Parties
Applicant: Freyssenet Posten (Pty) Ltd; Applicant: Murray & Roberts Construction (Pty) Ltd; Respondent: Nicolas Georgious N.O.; Respondent: Maureen Lynette Georgiou; Respondent: Joseph Reynolds Chemaly N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 July 2017
Case Number
5406/2014
Procedural Posture
Civil Procedure Exception / Exception to Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
N.M. Mbhele
Legal Topics
Exception Procedure, Breach of Contract, Specific Performance, Vagueness and Embarrassment, Cession of Rights
Civil Procedure Commercial and Corporate Exception Procedure Breach of Contract Specific Performance Vagueness and Embarrassment Cession of Rights

Case Brief

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Parties

Freyssenet Posten (Pty) Ltd

Applicant

Murray & Roberts Construction (Pty) Ltd

Applicant

Nicolas Georgious N.O.

Respondent

Maureen Lynette Georgiou

Respondent

Joseph Reynolds Chemaly N.O.

Respondent

Procedural Posture

Civil Procedure Exception / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs' particulars of claim are vague and embarrassing and lack averments necessary to sustain a cause of action.
  2. 2 Whether the plaintiffs have pleaded sufficient contractual nexus and obligations to support their claim for specific performance and damages.
  3. 3 Whether the exception should be upheld and the particulars of claim struck out.

Ratio Decidendi

The court found that the plaintiffs' particulars of claim, when read as a whole and together with the annexed documents and correspondence, disclose a cause of action with sufficient clarity and particularity. The excipients failed to demonstrate that the pleadings are vague and embarrassing to the extent that they would suffer prejudice if compelled to plead. The contractual relationship and obligations, although complicated by the absence of the schedule, are sufficiently articulated through the tender documents, pro forma contract, and correspondence. The exception is therefore not excipiable on every reasonable interpretation and does not warrant striking out the particulars of claim.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs.