Lethale and Associates CC v Molope Bakeries (Pty) Ltd (282/98) [1999] ZANWHC 2 (16 September 1999)

Lethale and Associates CC v Molope Bakeries (Pty) Ltd (282/98) [1999] ZANWHC 2 (16 September 1999)

The court held that the contract relied upon in the particulars of claim was concluded between the two partners of Lethale and Phungula Consulting Services and the defendant, not the plaintiff close corporation. The plaintiff was not in existence at the time the contract was entered into and therefore could not be a party to it. The court found that any subsequent cession or adoption of rights by the plaintiff would require compliance with section 53 of the Close Corporations Act 69 of 1984, which was not pleaded or proven. Furthermore, the introduction of extrinsic evidence to alter the contract or introduce a new party would offend the parol evidence rule and be unfair to the defendant....

Citation
[1999] ZANWHC 2
Parties
Plaintiff: Lethale and Associates CC; Defendant: Molope Bakeries (Pty) Ltd
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
16 September 1999
Case Number
282/98
Procedural Posture
Exception Application / Exception to Particulars of Claim; Interlocutory Hearing
Outcome
Exception upheld with costs; combined summons set aside; plaintiff ordered to pay costs occasioned by postponement.
Judges
Nkabinde
Legal Topics
Exception to Particulars of Claim, Contractual Capacity, Parol Evidence Rule, Pre Incorporation Contracts
Civil Procedure Commercial and Corporate Exception to Particulars of Claim Contractual Capacity Parol Evidence Rule Pre Incorporation Contracts

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Lethale and Associates CC

Plaintiff

Molope Bakeries (Pty) Ltd

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim; Interlocutory Hearing

Legal Issues

  1. 1 Whether the plaintiff was a party to the contract relied upon in the particulars of claim.
  2. 2 Whether extrinsic evidence may be led to support, vary, or contradict the written contract.
  3. 3 Whether the citation of the plaintiff as a party to the contract is correct in law.

Ratio Decidendi

The court held that the contract relied upon in the particulars of claim was concluded between the two partners of Lethale and Phungula Consulting Services and the defendant, not the plaintiff close corporation. The plaintiff was not in existence at the time the contract was entered into and therefore could not be a party to it. The court found that any subsequent cession or adoption of rights by the plaintiff would require compliance with section 53 of the Close Corporations Act 69 of 1984, which was not pleaded or proven. Furthermore, the introduction of extrinsic evidence to alter the contract or introduce a new party would offend the parol evidence rule and be unfair to the defendant....

Court Disposition

Exception upheld with costs; combined summons set aside; plaintiff ordered to pay costs occasioned by postponement.

Orders

  • The exception is upheld with costs.
  • The combined summons is set aside.