Kunver and Others v Mistry and Another (22/007836) [2024] ZAGPJHC 974 (30 September 2024)

Kunver and Others v Mistry and Another (22/007836) [2024] ZAGPJHC 974 (30 September 2024)

The court found that the plaintiffs' particulars of claim against the second defendant did not disclose a cause of action because section 13 of the FAIS Act only imposes liability on a financial services provider if certified confirmation of responsibility for the representative's activities is provided, which was not alleged or present in this case. The exception was therefore upheld. Furthermore, the court held that, in terms of Rule 23(4), the delivery of an exception suspends the obligation to deliver further pleadings, making the plaintiffs' notice of bar against the first defendant an irregular step. The notice of bar was set aside. Costs were awarded to follow the event.

Citation
[2024] ZAGPJHC 974
Parties
Plaintiff: Surekha Kunver; Plaintiff: Santam Limited; Plaintiff: Bryte Insurance Company Limited; Plaintiff: Constantia Insurance Company Limited; Plaintiff: Guardrisk Insurance Company Limited; Plaintiff: Old Mutual Insure Limited; Plaintiff: New National Assurance Company Limited; Defendant: Prakash Mistry; Defendant: Oracle Broker Services
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 September 2024
Case Number
22/007836
Procedural Posture
Exception Application / Judgment on Exception and Irregular Step
Outcome
Exception upheld; plaintiffs' particulars of claim against the second defendant do not disclose a cause of action; plaintiffs' notice of bar set aside as irregular.
Judges
Dlamini
Legal Topics
Exception to Pleadings, Fais Act Liability, Mandate Agreement, Irregular Step, Notice of Bar
Civil Procedure Commercial and Corporate Exception to Pleadings Fais Act Liability Mandate Agreement Irregular Step Notice of Bar

Case Brief

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Parties

Surekha Kunver

Plaintiff

Santam Limited

Plaintiff

Bryte Insurance Company Limited

Plaintiff

Constantia Insurance Company Limited

Plaintiff

Guardrisk Insurance Company Limited

Plaintiff

Old Mutual Insure Limited

Plaintiff

New National Assurance Company Limited

Plaintiff

Prakash Mistry

Defendant

Oracle Broker Services

Defendant

Procedural Posture

Exception Application / Judgment on Exception and Irregular Step

Legal Issues

  1. 1 Whether the plaintiffs' amended particulars of claim against the second defendant disclose a cause of action.
  2. 2 Whether the exception brought by the second defendant suspends the obligation of the first defendant to deliver a plea under Rule 30 of the Uniform Rules of Court.
  3. 3 Whether the plaintiffs' notice of bar against the first defendant constitutes an irregular step.

Ratio Decidendi

The court found that the plaintiffs' particulars of claim against the second defendant did not disclose a cause of action because section 13 of the FAIS Act only imposes liability on a financial services provider if certified confirmation of responsibility for the representative's activities is provided, which was not alleged or present in this case. The exception was therefore upheld. Furthermore, the court held that, in terms of Rule 23(4), the delivery of an exception suspends the obligation to deliver further pleadings, making the plaintiffs' notice of bar against the first defendant an irregular step. The notice of bar was set aside. Costs were awarded to follow the event.

Court Disposition

Exception upheld; plaintiffs' particulars of claim against the second defendant do not disclose a cause of action; plaintiffs' notice of bar set aside as irregular.

Orders

  • The order marked X signed on 11 June 2024 is made an order of court.
  • Plaintiffs' notice of bar against the first defendant is set aside as an irregular step.