Ilkley Manor (Pty) Ltd v Trustees of the Bush Willow Trust (T 2235/98); Ilkley Manor (Pty) Ltd v Trustees of the Bush Willow Trust (T 2235/98) (40101/2017; 40930/2018) [2019] ZAGPJHC 508 (11 December 2019)

Ilkley Manor (Pty) Ltd v Trustees of the Bush Willow Trust (T 2235/98); Ilkley Manor (Pty) Ltd v Trustees of the Bush Willow Trust (T 2235/98) (40101/2017; 40930/2018) [2019] ZAGPJHC 508 (11 December 2019)

The court held that an exception cannot be taken against a Rule 13 notice, as it is not a pleading within the meaning of Rule 23(1). The exception against the particulars of claim (POC2) was dismissed because the plaintiff had pleaded all necessary facts to sustain its cause of action, and the principle of res litigiosa did not preclude the plaintiff from vindicating its rights at trial. The court found that the exceptions were without merit, especially as the same arguments had already been rejected in a previous judgment by Mashile J. The focus should now be on the parties pleading to the merits so the matter can proceed to finality.

Citation
[2019] ZAGPJHC 508
Parties
Defendant: Ilkley Manor (Pty) Ltd; Third Party: Ilkley Manor (Pty) Ltd; Plaintiff: Trustees of Bush Willow Trust (T 2235/98)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 December 2019
Case Number
40101/2017; 40930/2018
Procedural Posture
Exception Application / Exceptions to Notice and Particulars of Claim (poc2)
Outcome
Exceptions dismissed with costs, including costs of two counsel where employed.
Judges
Vally
Legal Topics
Exception Procedure, Res Litigiosa, Pleading Requirements, Transfer of Property
Civil Procedure Land and Property Exception Procedure Res Litigiosa Pleading Requirements Transfer of Property

Case Brief

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Parties

Ilkley Manor (Pty) Ltd

Defendant

Ilkley Manor (Pty) Ltd

Third Party

Trustees of Bush Willow Trust (T 2235/98)

Plaintiff

Procedural Posture

Exception Application / Exceptions to Notice and Particulars of Claim (poc2)

Legal Issues

  1. 1 Whether an exception can be taken against a Rule 13 notice.
  2. 2 Whether the particulars of claim (POC2) disclose a cause of action against Ilkley Manor (Pty) Ltd.
  3. 3 Whether the principle of res litigiosa precludes transfer of property during pending litigation.

Ratio Decidendi

The court held that an exception cannot be taken against a Rule 13 notice, as it is not a pleading within the meaning of Rule 23(1). The exception against the particulars of claim (POC2) was dismissed because the plaintiff had pleaded all necessary facts to sustain its cause of action, and the principle of res litigiosa did not preclude the plaintiff from vindicating its rights at trial. The court found that the exceptions were without merit, especially as the same arguments had already been rejected in a previous judgment by Mashile J. The focus should now be on the parties pleading to the merits so the matter can proceed to finality.

Court Disposition

Exceptions dismissed with costs, including costs of two counsel where employed.

Orders

  • The exceptions taken by the Third Party in the first action and the defendant in the second action are dismissed with costs, including the costs of two counsel where two counsel were employed.