Mokone v Tassos Properties CC and Another (2012/12229) [2013] ZAGPJHC 197 (11 June 2013)

Mokone v Tassos Properties CC and Another (2012/12229) [2013] ZAGPJHC 197 (11 June 2013)

The court held that the plaintiff's particulars of claim, in respect of the main claim, lacked the necessary averments to sustain a cause of action. The right of pre-emption does not create a binding sale agreement but only an obligation to offer the property for sale. Since the property had already been transferred to the second defendant, the relief sought against the first defendant was not competent. Regarding the alternative claim for damages, the particulars of claim did not comply with Rule 18(10) as the plaintiff failed to set out the basis and calculation of the alleged losses, making it impossible for the defendants to reasonably assess the quantum. Accordingly, the particulars...

Citation
[2013] ZAGPJHC 197
Parties
Plaintiff: Mokone, N J; Defendant: Tassos Properties CC; Defendant: Blue Canyon Properties 125 CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 June 2013
Case Number
2012/12229
Procedural Posture
Exception Application / Application to Set Aside Particulars of Claim and Compel Amendment
Outcome
Plaintiff's particulars of claim set aside; plaintiff granted leave to amend within 20 days; plaintiff to pay costs.
Judges
Kolbe
Legal Topics
Right of Pre Emption, Particulars of Claim, Damages Quantification, Rule 18 10 Compliance
Civil Procedure Land and Property Right of Pre Emption Particulars of Claim Damages Quantification Rule 18 10 Compliance

Case Brief

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Parties

Mokone, N J

Plaintiff

Tassos Properties CC

Defendant

Blue Canyon Properties 125 CC

Defendant

Procedural Posture

Exception Application / Application to Set Aside Particulars of Claim and Compel Amendment

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action based on the right of pre-emption.
  2. 2 Whether the relief sought by the plaintiff is competent given the property was transferred to the second defendant.
  3. 3 Whether the plaintiff's claim for damages complies with Rule 18(10) of the Uniform Rules of Court.

Ratio Decidendi

The court held that the plaintiff's particulars of claim, in respect of the main claim, lacked the necessary averments to sustain a cause of action. The right of pre-emption does not create a binding sale agreement but only an obligation to offer the property for sale. Since the property had already been transferred to the second defendant, the relief sought against the first defendant was not competent. Regarding the alternative claim for damages, the particulars of claim did not comply with Rule 18(10) as the plaintiff failed to set out the basis and calculation of the alleged losses, making it impossible for the defendants to reasonably assess the quantum. Accordingly, the particulars...

Court Disposition

Plaintiff's particulars of claim set aside; plaintiff granted leave to amend within 20 days; plaintiff to pay costs.

Orders

  • The plaintiff's particulars of claim are hereby set aside.
  • The plaintiff is granted 20 days from date of this order to amend her particulars of claim.