M.J.D and Others v N.P.D and Others (190/2017) [2017] ZAECGHC 99 (5 September 2017)

M.J.D and Others v N.P.D and Others (190/2017) [2017] ZAECGHC 99 (5 September 2017)

The court held that, for the purposes of deciding the exception, the allegations in the particulars of claim must be accepted as true. On the plaintiffs' version, the joint estate was divided by agreement in 2006, and the relief sought does not necessarily contradict the previous court order. The interpretation advanced by the first defendant is not the only reasonable interpretation of the particulars of claim. Therefore, the particulars of claim are not excipiable on every reasonable interpretation, and the exception must be dismissed.

Citation
[2017] ZAECGHC 99
Parties
Plaintiff: M.J.D.; Plaintiff: S.G.D.; Plaintiff: N.F.D.; Plaintiff: N.P.; Defendant: N.P.D.; Defendant: A.S. N.O.; Defendant: DE JAGER & LORDAN INC.; Defendant: THE MASTER OF THE HIGH COURT, GRAHAMstown
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
5 September 2017
Case Number
190/2017
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
G H Bloem
Legal Topics
Exception Procedure, Division of Joint Estate, Oral Settlement Agreement, Finality of Divorce Orders
Civil Procedure Family and Children Exception Procedure Division of Joint Estate Oral Settlement Agreement Finality of Divorce Orders

Case Brief

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Parties

M.J.D.

Plaintiff

S.G.D.

Plaintiff

N.F.D.

Plaintiff

N.P.

Plaintiff

N.P.D.

Defendant

A.S. N.O.

Defendant

DE JAGER & LORDAN INC.

Defendant

THE MASTER OF THE HIGH COURT, GRAHAMstown

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim disclose a cause of action or are vague and embarrassing.
  2. 2 Whether the relief sought by the plaintiffs contradicts or seeks to vary a previous court order regarding division of the joint estate.
  3. 3 Whether the alleged oral agreement between the parties in 2006 can be enforced in light of the prior divorce order.

Ratio Decidendi

The court held that, for the purposes of deciding the exception, the allegations in the particulars of claim must be accepted as true. On the plaintiffs' version, the joint estate was divided by agreement in 2006, and the relief sought does not necessarily contradict the previous court order. The interpretation advanced by the first defendant is not the only reasonable interpretation of the particulars of claim. Therefore, the particulars of claim are not excipiable on every reasonable interpretation, and the exception must be dismissed.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs.