Hlapolosa and Another v Lishiva and Others (19861/2019) [2019] ZAGPJHC 494 (6 December 2019)

Hlapolosa and Another v Lishiva and Others (19861/2019) [2019] ZAGPJHC 494 (6 December 2019)

The court found that the particulars of claim were vague and embarrassing, as they failed to distinguish between contractual and delictual causes of action and did not plead them in the alternative. The plaintiffs did not adequately link the alleged breaches to the damages claimed, nor did they plead a case for restitution or damages in accordance with established legal principles. The second defendant, not being a party to the sale agreement, could not be held liable for breach thereof. The confusion and lack of clarity in the pleadings caused prejudice to the defendants, justifying the upholding of the exception and setting aside the particulars of claim.

Citation
[2019] ZAGPJHC 494
Parties
Plaintiff: Socrates Hlapolosa; Plaintiff: Nonkululeko Hlapolosa; Defendant: Andrew Mbengeni Lishiva; Defendant: Lishiva Attorneys; Defendant: City of Johannesburg; Defendant: Registrar of Deeds, Johannesburg; Defendant: First National Bank of South Africa
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 December 2019
Case Number
19861/2019
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld; particulars of claim set aside with costs; plaintiffs granted leave to amend within thirty days, failing which the claim is dismissed with costs.
Judges
DP de Villiers
Legal Topics
Exception Procedure, Vague and Embarrassing Pleading, Breach of Contract, Delictual Claims, Restitution, Compliance Certificates
Civil Procedure Land and Property Exception Procedure Vague and Embarrassing Pleading Breach of Contract Delictual Claims Restitution Compliance Certificates

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Parties

Socrates Hlapolosa

Plaintiff

Nonkululeko Hlapolosa

Plaintiff

Andrew Mbengeni Lishiva

Defendant

Lishiva Attorneys

Defendant

City of Johannesburg

Defendant

Registrar of Deeds, Johannesburg

Defendant

First National Bank of South Africa

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim are vague and embarrassing to the extent that they prejudice the defendants.
  2. 2 Whether the plaintiffs have confused contractual and delictual causes of action without pleading them in the alternative.
  3. 3 Whether the second defendant, not being a party to the sale agreement, can be held liable for breach thereof.

Ratio Decidendi

The court found that the particulars of claim were vague and embarrassing, as they failed to distinguish between contractual and delictual causes of action and did not plead them in the alternative. The plaintiffs did not adequately link the alleged breaches to the damages claimed, nor did they plead a case for restitution or damages in accordance with established legal principles. The second defendant, not being a party to the sale agreement, could not be held liable for breach thereof. The confusion and lack of clarity in the pleadings caused prejudice to the defendants, justifying the upholding of the exception and setting aside the particulars of claim.

Court Disposition

Exception upheld; particulars of claim set aside with costs; plaintiffs granted leave to amend within thirty days, failing which the claim is dismissed with costs.

Orders

  • The exception is upheld with costs.
  • The particulars of claim are set aside.