Monageng NO and Another v Poswa NO and Others (38283/2019) [2020] ZAGPJHC 318 (8 September 2020)

Monageng NO and Another v Poswa NO and Others (38283/2019) [2020] ZAGPJHC 318 (8 September 2020)

The court held that, except for the absence of a tender for repayment of amounts received and incorrect paragraph references, the amended particulars of claim are not vague and embarrassing and contain sufficient averments to sustain the causes of action for restitution and related relief. The failure to cite all...

Source-derived case information.

Citation
[2020] ZAGPJHC 318
Parties
Plaintiff: Gladwell Tlhware John Monageng N.O; Plaintiff: Wongeka Monageng N.O; Defendant: Luyolo Poswa N.O; Defendant: Rainbow Pepper Trading 149 (Pty) Ltd; Defendant: Companies and Intellectual Property Commission
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 September 2020
Case Number
38283/2019
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim
Outcome
Exception dismissed except in respect of the absence of a tender for repayment and incorrect paragraph references; plaintiffs granted leave to amend; costs awarded against excipients.
Judges
Maier-Frawley
Legal Topics
Exception Procedure, Contract Cancellation, Restitution, Trust Litigation, Director Reinstatement, Arbitration Clause
Civil Procedure Commercial and Corporate Exception Procedure Contract Cancellation Restitution Trust Litigation Director Reinstatement Arbitration Clause

Source-derived case record

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 11 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Gladwell Tlhware John Monageng N.O

Plaintiff

Wongeka Monageng N.O

Plaintiff

Luyolo Poswa N.O

Defendant

Rainbow Pepper Trading 149 (Pty) Ltd

Defendant

Companies and Intellectual Property Commission

Defendant

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the amended particulars of claim are vague and embarrassing and/or lack averments necessary to sustain a cause of action.
  2. 2 Whether failure to cite all trustees of the MF Trust renders the claim excipiable.
  3. 3 Whether the plaintiffs are entitled to restitution and reinstatement as director following breach and cancellation of the sale of shares agreement.

Ratio Decidendi

The court held that, except for the absence of a tender for repayment of amounts received and incorrect paragraph references, the amended particulars of claim are not vague and embarrassing and contain sufficient averments to sustain the causes of action for restitution and related relief. The failure to cite all trustees is not excipiable at the exception stage and is more appropriately raised by special plea. The objections based on the building management agreement, suspensive conditions, and alleged payment or overpayment require extrinsic evidence and are not suitable for determination by exception. The absence of a tender for repayment of amounts received is fatal to the restitution...

Court Disposition

Exception dismissed except in respect of the absence of a tender for repayment and incorrect paragraph references; plaintiffs granted leave to amend; costs awarded against excipients.

Orders

  • The exception on grounds 1 to 8, save in the respects mentioned in paragraphs 50 and 53 of the judgment, is dismissed.
  • The plaintiffs are granted leave to amend the amended particulars of claim in the respects mentioned in paragraphs 50 and 53 of the judgment within 15 days of the order.