Kole v Pienaar and Others (44064/19) [2020] ZAGPPHC 38 (11 February 2020)

Kole v Pienaar and Others (44064/19) [2020] ZAGPPHC 38 (11 February 2020)

The court found that the particulars of claim, as pleaded, do not disclose a cause of action against the first defendant. While the plaintiff attempted to broaden the scope by referencing the overall circumstances, the court held that it cannot read into the pleadings facts that are not alleged. The exception was upheld, and the particulars of claim were set aside as far as the first defendant is concerned. However, given the nature of the claim and the burden placed on suppliers under the Consumer Protection Act, the court declined to make a costs order against the plaintiff and granted leave to amend the particulars of claim.

Citation
[2020] ZAGPPHC 38
Parties
Plaintiff: Nicholas N Kole; Defendant: Jacobus R K Pienaar; Defendant: Credit Build Building Supplies (Pty) Ltd; Defendant: Kobus van der Westhuizen N.O; Defendant: Molelekwa Ashworth Tau N.O; Defendant: Master of the High Court; Defendant: Air Chefs SOC Ltd; Defendant: Minister of Finance
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 February 2020
Case Number
44064/19
Procedural Posture
Exception Application / Exception to Particulars of Claim; Interlocutory
Outcome
Exception upheld; particulars of claim set aside as against first defendant; leave to amend granted; no order as to costs.
Judges
M Van Staden
Legal Topics
Exception to Particulars of Claim, Consumer Protection Act, Director Liability, Lay Buy Payments
Civil Procedure Commercial and Corporate Exception to Particulars of Claim Consumer Protection Act Director Liability Lay Buy Payments

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Parties

Nicholas N Kole

Plaintiff

Jacobus R K Pienaar

Defendant

Credit Build Building Supplies (Pty) Ltd

Defendant

Kobus van der Westhuizen N.O

Defendant

Molelekwa Ashworth Tau N.O

Defendant

Master of the High Court

Defendant

Air Chefs SOC Ltd

Defendant

Minister of Finance

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim; Interlocutory

Legal Issues

  1. 1 Whether the particulars of claim disclose a cause of action against the first defendant.
  2. 2 Whether the first defendant, as director, can be held personally liable under section 65(2) of the Consumer Protection Act.

Ratio Decidendi

The court found that the particulars of claim, as pleaded, do not disclose a cause of action against the first defendant. While the plaintiff attempted to broaden the scope by referencing the overall circumstances, the court held that it cannot read into the pleadings facts that are not alleged. The exception was upheld, and the particulars of claim were set aside as far as the first defendant is concerned. However, given the nature of the claim and the burden placed on suppliers under the Consumer Protection Act, the court declined to make a costs order against the plaintiff and granted leave to amend the particulars of claim.

Court Disposition

Exception upheld; particulars of claim set aside as against first defendant; leave to amend granted; no order as to costs.

Orders

  • The first defendant's exception is upheld and the plaintiff’s particulars of claim is set aside as far as the first defendant is concerned.
  • The plaintiff is granted leave to amend his particulars of claim within 15 days from date of order.