Hoste N.O. and Another v Lotter N.O. and Others (3710/2015) [2016] ZAECGHC 4 (5 February 2016)

Hoste N.O. and Another v Lotter N.O. and Others (3710/2015) [2016] ZAECGHC 4 (5 February 2016)

The court held that the proposed amendments to the particulars of claim in paragraphs 35.1 and 35.2, relating to the alleged non-compliance with the formalities of the Wills Act, were sufficiently clear and provided a factual basis for the claim, enabling the defendant to plead thereto. However, the amendment in paragraph 35.3, which alleged fraud or forgery, was found to be vague and embarrassing as it was unsupported by any factual averments. The court emphasized that a mere conclusion of law without supporting facts is insufficient and leaves the defendant in the dark as to the nature of the alleged misconduct. Consequently, the amendment relating to fraud or forgery was refused, while...

Citation
[2016] ZAECGHC 4
Parties
Plaintiff: Patricia Shelley Hoste N.O.; Plaintiff: Deborah Anne Hotz N.O.; Defendant: Karen Lotter N.O.; Defendant: Dirk Stoffberg; Defendant: Gordon Gary Stoffberg; Defendant: Girls and Boys Town SA; Defendant: Salvation Army; Defendant: The Society for the Prevention of Cruelty to Animals – East London; Defendant: Saint Bernards Church; Defendant: South African Air Force Association; Defendant: Durban High School; Defendant: Wanderers Cricket Club; Defendant: Christine Gale Odendaal; Defendant: Merle Williamson; Defendant: Debra Jennings; Defendant: Jordana Malkoff; Defendant: Saint Dominics Hospice; Defendant: Bettina van Niewenhuizen; Defendant: The Master of the High Court, Grahamstown; Defendant: 24 Squadron, Johannesburg
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
5 February 2016
Case Number
3710/2015
Procedural Posture
Civil Application / Application to Amend Particulars of Claim; Exception Proceedings
Outcome
Application to amend particulars of claim partly granted and partly refused.
Judges
J.D. Pickering
Legal Topics
Amendment of Pleadings, Exception Vague and Embarrassing, Wills Act Formalities, Trust Beneficiary Dispute
Civil Procedure Family and Children Amendment of Pleadings Exception Vague and Embarrassing Wills Act Formalities Trust Beneficiary Dispute

Case Brief

Summary, issues, holding and outcome

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Parties

Patricia Shelley Hoste N.O.

Plaintiff

Deborah Anne Hotz N.O.

Plaintiff

Karen Lotter N.O.

Defendant

Dirk Stoffberg

Defendant

Gordon Gary Stoffberg

Defendant

Girls and Boys Town SA

Defendant

Salvation Army

Defendant

The Society for the Prevention of Cruelty to Animals – East London

Defendant

Saint Bernards Church

Defendant

South African Air Force Association

Defendant

Durban High School

Defendant

Wanderers Cricket Club

Defendant

Christine Gale Odendaal

Defendant

Merle Williamson

Defendant

Debra Jennings

Defendant

Jordana Malkoff

Defendant

Saint Dominics Hospice

Defendant

Bettina van Niewenhuizen

Defendant

The Master of the High Court, Grahamstown

Defendant

24 Squadron, Johannesburg

Defendant

Procedural Posture

Civil Application / Application to Amend Particulars of Claim; Exception Proceedings

Legal Issues

  1. 1 Whether the proposed amendments to the particulars of claim cure the vagueness and embarrassment alleged by the second defendant.
  2. 2 Whether the allegations regarding fraud or forgery are supported by sufficient factual averments.
  3. 3 Whether the particulars of claim disclose a cause of action in respect of the validity of the wills.

Ratio Decidendi

The court held that the proposed amendments to the particulars of claim in paragraphs 35.1 and 35.2, relating to the alleged non-compliance with the formalities of the Wills Act, were sufficiently clear and provided a factual basis for the claim, enabling the defendant to plead thereto. However, the amendment in paragraph 35.3, which alleged fraud or forgery, was found to be vague and embarrassing as it was unsupported by any factual averments. The court emphasized that a mere conclusion of law without supporting facts is insufficient and leaves the defendant in the dark as to the nature of the alleged misconduct. Consequently, the amendment relating to fraud or forgery was refused, while...

Court Disposition

Application to amend particulars of claim partly granted and partly refused.

Orders

  • The application to amend the particulars of claim in the respects set out in paragraphs 35.1, 35.2 and 36 is allowed.
  • The application to amend the particulars of claim in the respect set out in paragraph 35.3 is dismissed.