Joubert v Mocke en Ander (2941/2010) [2011] ZAFSHC 79 (26 May 2011)

Joubert v Mocke en Ander (2941/2010) [2011] ZAFSHC 79 (26 May 2011)

The court found that the plaintiff's particulars of claim were vague and embarrassing, particularly due to the internal inconsistency between claims for damages, cancellation, and future loss of income. The claims did not clearly set out whether the contract was cancelled or maintained, nor did they specify the contractual terms relied upon. The calculation of damages in claim 7 was unclear, and certain annexures were illegible. The court held that these defects prejudiced the defendants and that the particulars of claim must be amended to remove the vagueness and confusion. The exception was accordingly upheld with costs, and the plaintiff was granted leave to amend within ten days.

Citation
[2011] ZAFSHC 79
Parties
Plaintiff: Johannes Jeramias Joubert; Defendant: J P Mocke; Defendant: N A G Mocke
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
26 May 2011
Case Number
2941/2010
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld with costs; plaintiff granted leave to amend particulars of claim within ten days.
Judges
Kruger, R
Legal Topics
Exception to Particulars of Claim, Vagueness and Embarrassment, Lease Agreement Dispute, Damages Calculation
Civil Procedure Land and Property Exception to Particulars of Claim Vagueness and Embarrassment Lease Agreement Dispute Damages Calculation

Case Brief

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Parties

Johannes Jeramias Joubert

Plaintiff

J P Mocke

Defendant

N A G Mocke

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim are vague and embarrassing as alleged by the defendants.
  2. 2 Whether the claims for damages, cancellation, and future loss of income are mutually inconsistent and confusing.
  3. 3 Whether the plaintiff has sufficiently pleaded the basis for each claim and the contractual terms relied upon.

Ratio Decidendi

The court found that the plaintiff's particulars of claim were vague and embarrassing, particularly due to the internal inconsistency between claims for damages, cancellation, and future loss of income. The claims did not clearly set out whether the contract was cancelled or maintained, nor did they specify the contractual terms relied upon. The calculation of damages in claim 7 was unclear, and certain annexures were illegible. The court held that these defects prejudiced the defendants and that the particulars of claim must be amended to remove the vagueness and confusion. The exception was accordingly upheld with costs, and the plaintiff was granted leave to amend within ten days.

Court Disposition

Exception upheld with costs; plaintiff granted leave to amend particulars of claim within ten days.

Orders

  • The exception is upheld with costs.
  • The plaintiff is granted leave to amend the particulars of claim to remove vagueness and embarrassment within ten days of this order.