Maseko and Another v Allandins Ring Trading 519cc and Another (1691/2023) [2024] ZAFSHC 107 (15 April 2024)

Maseko and Another v Allandins Ring Trading 519cc and Another (1691/2023) [2024] ZAFSHC 107 (15 April 2024)

The court upheld the first ground of exception, finding that the particulars of claim did not disclose a cause of action against the second defendant, as no contractual basis or membership was pleaded. The second, third, and fourth grounds of exception were dismissed. The court found that the obligation to provide NHBRC and local authority approvals could be construed against the defendants as drafters, and the particulars of claim did not lack necessary averments. The absence of timeframes in the contract did not preclude a claim for damages, as the contra preferentem rule applied. The court accepted that issuing summons implied cancellation of the contract. Each party was ordered to pay...

Citation
[2024] ZAFSHC 107
Parties
Plaintiff: Nthando Maseko; Plaintiff: Lerato Maseko; Defendant: Allandin’s Ring Trading 519cc t/a Viljoen’s Construction; Defendant: Mr. Lance Lucas
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
15 April 2024
Case Number
1691/2023
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
The exception is partially upheld: the first ground succeeds, the second, third, and fourth grounds are dismissed. Plaintiffs are granted leave to amend their pleading. Each party to pay their own costs.
Judges
M.T. Jordaan
Legal Topics
Exception Procedure, Building Contract Dispute, Misjoinder, Contra Preferentem Rule, Specific Performance, Damages for Breach of Contract
Civil Procedure Commercial and Corporate Exception Procedure Building Contract Dispute Misjoinder Contra Preferentem Rule Specific Performance Damages for Breach of Contract

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Parties

Nthando Maseko

Plaintiff

Lerato Maseko

Plaintiff

Allandin’s Ring Trading 519cc t/a Viljoen’s Construction

Defendant

Mr. Lance Lucas

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim disclose a cause of action against the second defendant.
  2. 2 Whether the plaintiffs pleaded material terms regarding NHBRC and local authority approvals.
  3. 3 Whether the absence of timeframes in the contract precludes a claim for damages due to lack of mora.

Ratio Decidendi

The court upheld the first ground of exception, finding that the particulars of claim did not disclose a cause of action against the second defendant, as no contractual basis or membership was pleaded. The second, third, and fourth grounds of exception were dismissed. The court found that the obligation to provide NHBRC and local authority approvals could be construed against the defendants as drafters, and the particulars of claim did not lack necessary averments. The absence of timeframes in the contract did not preclude a claim for damages, as the contra preferentem rule applied. The court accepted that issuing summons implied cancellation of the contract. Each party was ordered to pay...

Court Disposition

The exception is partially upheld: the first ground succeeds, the second, third, and fourth grounds are dismissed. Plaintiffs are granted leave to amend their pleading. Each party to pay their own costs.

Orders

  • The first ground of exception is upheld.
  • The second, third, and fourth grounds of exception are dismissed.