KPMG Services (Pty)Ltd and Another v Tolken and Others ; In re: Tolken and Others v National Director of Public Prosecutions and Others (38642/2013) [2016] ZAGPPHC 824 (2 September 2016)

KPMG Services (Pty)Ltd and Another v Tolken and Others ; In re: Tolken and Others v National Director of Public Prosecutions and Others (38642/2013) [2016] ZAGPPHC 824 (2 September 2016)

The court held that the Plaintiffs' amended particulars of claim, when read with the annexures and the letter of curatorship, sufficiently allege the appointment of the Fourth Defendant as curator bonis in his capacity as employee of the Second and Third Defendants. The pleadings set out the material facts upon which the Plaintiffs rely, including the duty of care and the basis for liability. The court found that the exceptions raised by the excipients, including the alleged failure to plead the legal basis for the duty of care, the causal connection between conduct and loss, and the requirement of bad faith, do not render the particulars of claim excipiable. The Plaintiffs are entitled...

Citation
[2016] ZAGPPHC 824
Parties
Applicant: KPMG Services (Pty) Ltd; Applicant: Dean Friedman N.O.; Respondent: Thomas O'Brien Tolken; Respondent: Thomas O'Brien Tolken N.O.; Respondent: Mimmie Francis Tolken N.O.; Respondent: Thomas O'Brien Tolken Snr N.O.; Respondent: National Director of Public Prosecutions; Respondent: KPMG Administrators (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 September 2016
Case Number
38642/2013
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim
Outcome
All exceptions raised by the Second and Fourth Defendants are dismissed with costs.
Judges
Du Plessis
Legal Topics
Curator Bonis Liability, Pleading Requirements, Duty of Care, Exception Procedure, Agency and Employment
Civil Procedure Commercial and Corporate Curator Bonis Liability Pleading Requirements Duty of Care Exception Procedure Agency and Employment

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Parties

KPMG Services (Pty) Ltd

Applicant

Dean Friedman N.O.

Applicant

Thomas O'Brien Tolken

Respondent

Thomas O'Brien Tolken N.O.

Respondent

Mimmie Francis Tolken N.O.

Respondent

Thomas O'Brien Tolken Snr N.O.

Respondent

National Director of Public Prosecutions

Respondent

KPMG Administrators (Pty) Ltd

Respondent

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the amended particulars of claim disclose a cause of action against the Second, Third, and Fourth Defendants.
  2. 2 Whether the pleadings sufficiently allege the duty of care and basis for liability of the Defendants.
  3. 3 Whether the Plaintiffs have pleaded the necessary causal connection between alleged losses and Defendants' conduct.

Ratio Decidendi

The court held that the Plaintiffs' amended particulars of claim, when read with the annexures and the letter of curatorship, sufficiently allege the appointment of the Fourth Defendant as curator bonis in his capacity as employee of the Second and Third Defendants. The pleadings set out the material facts upon which the Plaintiffs rely, including the duty of care and the basis for liability. The court found that the exceptions raised by the excipients, including the alleged failure to plead the legal basis for the duty of care, the causal connection between conduct and loss, and the requirement of bad faith, do not render the particulars of claim excipiable. The Plaintiffs are entitled...

Court Disposition

All exceptions raised by the Second and Fourth Defendants are dismissed with costs.

Orders

  • Exception 1 to 21, on all grounds submitted, are dismissed with costs.