JV Gold Bridge (Pty) Ltd and Others v Kamonyaka Property Developments (Pty0 Ltd (35484/2020) [2021] ZAGPPHC 268 (5 May 2021)

JV Gold Bridge (Pty) Ltd and Others v Kamonyaka Property Developments (Pty0 Ltd (35484/2020) [2021] ZAGPPHC 268 (5 May 2021)

The court found that the exception raised by the defendants could not succeed. The loan agreement expressly provided that repayment would become due on 30 days' written notice by the plaintiff, making demand a condition precedent to claimability. The intention of the parties at the time of contracting is disputed and requires evidence, which cannot be resolved on exception. Prescription should be raised by special plea, not exception, where the facts are in dispute. The plaintiff's claim is not bad in law, and the exception is dismissed. The late filing of the exception is condoned, but the process of raising prescription by exception is inappropriate in these circumstances.

Citation
[2021] ZAGPPHC 268
Parties
Defendant: JV Gold Bridge (Pty) Ltd; Defendant: Visser Cornelius du Plessis; Defendant: Jacobus Petrus Goosen; Plaintiff: Kamonyaka Property Developments (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 May 2021
Case Number
35484/2020
Procedural Posture
Exception Application / Exception to Particulars of Claim Under Rule 23(1)
Outcome
Exception dismissed with costs; late filing condoned.
Judges
Francis-Subbiah
Legal Topics
Prescription Act, Exception Procedure, Loan Agreement, Pleading Requirements
Civil Procedure Commercial and Corporate Prescription Act Exception Procedure Loan Agreement Pleading Requirements

Case Brief

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Parties

JV Gold Bridge (Pty) Ltd

Defendant

Visser Cornelius du Plessis

Defendant

Jacobus Petrus Goosen

Defendant

Kamonyaka Property Developments (Pty) Ltd

Plaintiff

Procedural Posture

Exception Application / Exception to Particulars of Claim Under Rule 23(1)

Legal Issues

  1. 1 Whether the plaintiff's claim based on the loan agreement has prescribed.
  2. 2 Whether prescription can be raised by way of exception rather than special plea.
  3. 3 Whether the particulars of claim disclose a cause of action.

Ratio Decidendi

The court found that the exception raised by the defendants could not succeed. The loan agreement expressly provided that repayment would become due on 30 days' written notice by the plaintiff, making demand a condition precedent to claimability. The intention of the parties at the time of contracting is disputed and requires evidence, which cannot be resolved on exception. Prescription should be raised by special plea, not exception, where the facts are in dispute. The plaintiff's claim is not bad in law, and the exception is dismissed. The late filing of the exception is condoned, but the process of raising prescription by exception is inappropriate in these circumstances.

Court Disposition

Exception dismissed with costs; late filing condoned.

Orders

  • The late filing of the exception is condoned.
  • Prescription should be raised by special plea, not exception, in these circumstances.