Makan v Geswindt (2019/2016) [2016] ZAECPEHC 33 (10 August 2016)

Makan v Geswindt (2019/2016) [2016] ZAECPEHC 33 (10 August 2016)

The court found that the plaintiff's particulars of claim were excipiable, as they failed to plead the material terms of the alleged agreement, its nature, and the specific duties of the defendant. The Deed of Sale stipulated that payment was to be made upon registration of transfer, and the purchaser was to pay the applicant directly, not via the attorney's trust account. The plaintiff did not sufficiently allege how the defendant breached her obligations or was negligent. As a result, the claim was vague, embarrassing, and did not disclose a cause of action. The court held that summary judgment is an exceptional remedy and should not be granted where the particulars of claim are...

Citation
[2016] ZAECPEHC 33
Parties
Applicant: Patricia Ann Makan; Respondent: Carol Geswindt
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
10 August 2016
Case Number
2019/2016
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Opposed and Adjudicated
Outcome
Application for summary judgment dismissed.
Judges
TSHIKI
Legal Topics
Summary Judgment, Excipiable Particulars of Claim, Negligence in Transfer, Deed of Sale, Cause of Action
Civil Procedure Land and Property Summary Judgment Excipiable Particulars of Claim Negligence in Transfer Deed of Sale Cause of Action

Case Brief

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Parties

Patricia Ann Makan

Applicant

Carol Geswindt

Respondent

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Opposed and Adjudicated

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a valid cause of action for summary judgment.
  2. 2 Whether the defendant was negligent in the performance of her duties as conveyancing attorney.
  3. 3 Whether the agreement between the parties was sufficiently pleaded to sustain the claim.

Ratio Decidendi

The court found that the plaintiff's particulars of claim were excipiable, as they failed to plead the material terms of the alleged agreement, its nature, and the specific duties of the defendant. The Deed of Sale stipulated that payment was to be made upon registration of transfer, and the purchaser was to pay the applicant directly, not via the attorney's trust account. The plaintiff did not sufficiently allege how the defendant breached her obligations or was negligent. As a result, the claim was vague, embarrassing, and did not disclose a cause of action. The court held that summary judgment is an exceptional remedy and should not be granted where the particulars of claim are...

Court Disposition

Application for summary judgment dismissed.

Orders

  • The application for summary judgment is dismissed.
  • Costs are awarded against the applicant.