Kobusch and Others v Whitehead (5217/2022P) [2022] ZAKZPHC 83 (15 December 2022)

Kobusch and Others v Whitehead (5217/2022P) [2022] ZAKZPHC 83 (15 December 2022)

The court held that the defendant’s exception on the ground that the plaintiffs’ particulars of claim lacked averments necessary to sustain a cause of action was a valid and timeous response to the notice of bar, as it was delivered within the period allowed for filing subsequent pleadings. However, the notice of exception and exception on the ground of vagueness and embarrassment were delivered out of the prescribed 10-day period and, in the absence of condonation, constituted irregular steps. The plaintiffs’ particulars of claim were found to lack sufficient particularity and material facts to sustain a cause of action, and the defendant’s contentions in this regard were unchallenged....

Citation
[2022] ZAKZPHC 83
Parties
Plaintiff: Alexia Kobusch; Plaintiff: Wayne Kobusch; Plaintiff: Wood-Moore Manor CC; Defendant: Wendy Whitehead
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
15 December 2022
Case Number
5217/2022P
Procedural Posture
Civil Procedure / Exception to Particulars of Claim; Application to Set Aside Irregular Step
Outcome
Exception on the ground that the particulars of claim lack averments necessary to sustain a cause of action is upheld; exception and notice on the ground of vagueness and embarrassment are set aside as irregular; plaintiffs granted leave to amend within 20 days; costs awarded to defendant.
Judges
Madondo
Legal Topics
Exception Procedure, Notice of Bar, Irregular Step, Pleading Requirements, Vague and Embarrassing, Locus Standi
Civil Procedure Exception Procedure Notice of Bar Irregular Step Pleading Requirements Vague and Embarrassing Locus Standi

Case Brief

Summary, issues, holding and outcome

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Parties

Alexia Kobusch

Plaintiff

Wayne Kobusch

Plaintiff

Wood-Moore Manor CC

Plaintiff

Wendy Whitehead

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim; Application to Set Aside Irregular Step

Legal Issues

  1. 1 Whether the defendant’s notice of exception in terms of Rule 23(1)(a) and 23(2)(a) was a valid response to the notice of bar under Rule 26.
  2. 2 Whether the notice of exception and the exception were delivered out of time.
  3. 3 Whether the plaintiffs’ particulars of claim are excipiable for lacking averments necessary to sustain a cause of action.

Ratio Decidendi

The court held that the defendant’s exception on the ground that the plaintiffs’ particulars of claim lacked averments necessary to sustain a cause of action was a valid and timeous response to the notice of bar, as it was delivered within the period allowed for filing subsequent pleadings. However, the notice of exception and exception on the ground of vagueness and embarrassment were delivered out of the prescribed 10-day period and, in the absence of condonation, constituted irregular steps. The plaintiffs’ particulars of claim were found to lack sufficient particularity and material facts to sustain a cause of action, and the defendant’s contentions in this regard were unchallenged....

Court Disposition

Exception on the ground that the particulars of claim lack averments necessary to sustain a cause of action is upheld; exception and notice on the ground of vagueness and embarrassment are set aside as irregular; plaintiffs granted leave to amend within 20 days; costs awarded to defendant.

Orders

  • The exception, on the ground that the plaintiffs’ particulars of claim lack averments necessary to sustain a cause of action, is upheld.
  • The notice of exception and exception on the ground that the pleading is vague and embarrassing is set aside as an irregular proceeding.