Hosking and Others v Attorneys Fidelity Fund Board of Control (ECJ 2004/023) [2004] ZAECHC 27 (2 September 2004)

Hosking and Others v Attorneys Fidelity Fund Board of Control (ECJ 2004/023) [2004] ZAECHC 27 (2 September 2004)

The court found that the plaintiffs' replication was vague and embarrassing, failed to plead material facts, and relied on conclusions of law and fact without sufficient particularity. The replication introduced references to parties not before the court and attempted to widen the scope of the action beyond the particulars of claim. The constitutional challenge to the impugned sections of the Attorneys Act was inadequately pleaded, lacking factual basis for the alleged non-compliance with constitutional and parliamentary procedures. The replication also failed to properly plead the elements of estoppel, acquiescence, or unjust enrichment. The court held that the replication constituted an...

Citation
[2004] ZAECHC 27
Parties
Plaintiff: Thomas Reginald Chowles Hosking; Plaintiff: Robert Lawrence Reynolds; Plaintiff: Michael George Randell; Plaintiff: Nicolaas Jacobus Kruger; Plaintiff: Rudolph Eric Thomas Hosking; Plaintiff: Paul Michael Hosking; Plaintiff: William Henry Voysey; Plaintiff: Colleen Voysey; Plaintiff: Frederick Stemmett; Defendant: Attorneys Fidelity Fund Board of Control
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
2 September 2004
Case Number
ECJ 2004/023
Procedural Posture
Civil Trial / Exception and Application to Strike Out Replication Under Rule 30
Outcome
Exception upheld; replication set aside in its entirety as an irregular step under Rule 30. Plaintiffs to pay costs, including costs of two counsel. Leave granted to amend pleadings within 30 days.
Judges
Chetty
Legal Topics
Exception Procedure, Rule 30 Irregular Step, Vague and Embarrassing Pleading, Attorneys Act Liability, Constitutional Challenge, Unjust Enrichment
Civil Procedure Commercial and Corporate Exception Procedure Rule 30 Irregular Step Vague and Embarrassing Pleading Attorneys Act Liability Constitutional Challenge Unjust Enrichment

Case Brief

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Parties

Thomas Reginald Chowles Hosking

Plaintiff

Robert Lawrence Reynolds

Plaintiff

Michael George Randell

Plaintiff

Nicolaas Jacobus Kruger

Plaintiff

Rudolph Eric Thomas Hosking

Plaintiff

Paul Michael Hosking

Plaintiff

William Henry Voysey

Plaintiff

Colleen Voysey

Plaintiff

Frederick Stemmett

Plaintiff

Attorneys Fidelity Fund Board of Control

Defendant

Procedural Posture

Civil Trial / Exception and Application to Strike Out Replication Under Rule 30

Legal Issues

  1. 1 Whether the plaintiffs' replication is vague and embarrassing and constitutes an irregular step under Rule 30.
  2. 2 Whether the replication introduces new causes of action or departs from the particulars of claim.
  3. 3 Whether the constitutional challenge to sections 47(1)(g), 47A, and 47(4)-(5) of the Attorneys Act is properly pleaded.

Ratio Decidendi

The court found that the plaintiffs' replication was vague and embarrassing, failed to plead material facts, and relied on conclusions of law and fact without sufficient particularity. The replication introduced references to parties not before the court and attempted to widen the scope of the action beyond the particulars of claim. The constitutional challenge to the impugned sections of the Attorneys Act was inadequately pleaded, lacking factual basis for the alleged non-compliance with constitutional and parliamentary procedures. The replication also failed to properly plead the elements of estoppel, acquiescence, or unjust enrichment. The court held that the replication constituted an...

Court Disposition

Exception upheld; replication set aside in its entirety as an irregular step under Rule 30. Plaintiffs to pay costs, including costs of two counsel. Leave granted to amend pleadings within 30 days.

Orders

  • The exception is upheld and the replication set aside in its entirety.
  • The replication constitutes an irregular step in terms of Rule 30(1) and is set aside in its entirety.