Mosothokazi Share Trust and Others v Broll Auctions And Sales (Pty) Ltd and Another; In re: Broll Auctions And Sales (Pty) Ltd and Another v Mosothokazi Share Trust and Others (29772/2015) [2016] ZAGPJHC 111 (13 May 2016)

Mosothokazi Share Trust and Others v Broll Auctions And Sales (Pty) Ltd and Another; In re: Broll Auctions And Sales (Pty) Ltd and Another v Mosothokazi Share Trust and Others (29772/2015) [2016] ZAGPJHC 111 (13 May 2016)

The court held that the applicants' amended particulars of claim, when read as a whole, do not render the pleading vague and embarrassing. The documents annexed to the particulars of claim do not detract from the central assertion of the sale agreement relied upon. The applicants have sufficiently pleaded locus standi, as the trustee acted on behalf of the trust. The misrepresentation, whether innocent or negligent, is adequately pleaded for the purposes of avoiding the agreement and claiming repayment. The CPA cause of action, although lacking certain factual allegations, is pleaded in the alternative and does not affect the validity of the main claim. The objections raised by the...

Citation
[2016] ZAGPJHC 111
Parties
Applicant: Mosothokazi Share Trust; Applicant: Skosana, Brian; Applicant: Skosana, Thozama Reineth; Applicant: Mendonca, Roberto Jorge; Respondent: Broll Auctions and Sales (Pty) Ltd; Respondent: Lesnorene CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 May 2016
Case Number
29772/2015
Procedural Posture
Civil Application / Application to Amend Particulars of Claim; Opposed Exception
Outcome
Application for amendment granted; respondents' objections dismissed.
Judges
Van der Linde
Legal Topics
Pleading Amendment, Misrepresentation, Locus Standi, Consumer Protection Act, Vague and Embarrassing Exception
Civil Procedure Commercial and Corporate Pleading Amendment Misrepresentation Locus Standi Consumer Protection Act Vague and Embarrassing Exception

Case Brief

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Parties

Mosothokazi Share Trust

Applicant

Skosana, Brian

Applicant

Skosana, Thozama Reineth

Applicant

Mendonca, Roberto Jorge

Applicant

Broll Auctions and Sales (Pty) Ltd

Respondent

Lesnorene CC

Respondent

Procedural Posture

Civil Application / Application to Amend Particulars of Claim; Opposed Exception

Legal Issues

  1. 1 Whether the applicants' proposed amendment to the particulars of claim renders the pleading vague and embarrassing.
  2. 2 Whether the applicants have locus standi to claim under the sale agreement.
  3. 3 Whether the misrepresentation relied upon is sufficiently pleaded.

Ratio Decidendi

The court held that the applicants' amended particulars of claim, when read as a whole, do not render the pleading vague and embarrassing. The documents annexed to the particulars of claim do not detract from the central assertion of the sale agreement relied upon. The applicants have sufficiently pleaded locus standi, as the trustee acted on behalf of the trust. The misrepresentation, whether innocent or negligent, is adequately pleaded for the purposes of avoiding the agreement and claiming repayment. The CPA cause of action, although lacking certain factual allegations, is pleaded in the alternative and does not affect the validity of the main claim. The objections raised by the...

Court Disposition

Application for amendment granted; respondents' objections dismissed.

Orders

  • The amendment sought in applicants’ notice dated 9 November 2015, pages 154 to 162 of the papers, is granted.
  • The respondents are to pay the costs of the application for amendment, jointly and severally, the one paying the other to be absolved.