Ngale and Another v Fledge Capital (Proprietary) Limited and Another (46383/2020) [2021] ZAGPPHC 538 (19 August 2021)

Ngale and Another v Fledge Capital (Proprietary) Limited and Another (46383/2020) [2021] ZAGPPHC 538 (19 August 2021)

The court found that the Particulars of Claim failed to disclose a cause of action against the Second Defendant, as no factual basis for liability was pleaded beyond his alleged representation of the First Defendant. Additionally, the Plaintiffs did not plead that the profitability condition in the agreements was met, which was necessary for the balance of the purchase price to become due. The absence of these essential averments rendered the Particulars of Claim excipiable. The exception was therefore upheld, and the Particulars of Claim were struck out, with leave granted to the Plaintiffs to amend within ten days.

Citation
[2021] ZAGPPHC 538
Parties
Plaintiff: NA Ngale; Plaintiff: EP Madibo; Defendant: Fledge Capital (Proprietary) Limited; Defendant: W Adams
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 August 2021
Case Number
46383/2020
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld; Particulars of Claim struck out with leave to amend.
Judges
Nochumsohn
Legal Topics
Exception to Particulars of Claim, Cause of Action, Share Purchase Agreement, Pleading Requirements
Civil Procedure Commercial and Corporate Exception to Particulars of Claim Cause of Action Share Purchase Agreement Pleading Requirements

Case Brief

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Parties

NA Ngale

Plaintiff

EP Madibo

Plaintiff

Fledge Capital (Proprietary) Limited

Defendant

W Adams

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 have pleaded all necessary averments to sustain a claim for the balance of the purchase price under the share purchase agreements.

Ratio Decidendi

The court found that the Particulars of Claim failed to disclose a cause of action against the Second Defendant, as no factual basis for liability was pleaded beyond his alleged representation of the First Defendant. Additionally, the Plaintiffs did not plead that the profitability condition in the agreements was met, which was necessary for the balance of the purchase price to become due. The absence of these essential averments rendered the Particulars of Claim excipiable. The exception was therefore upheld, and the Particulars of Claim were struck out, with leave granted to the Plaintiffs to amend within ten days.

Court Disposition

Exception upheld; Particulars of Claim struck out with leave to amend.

Orders

  • The exception is upheld.
  • The Particulars of Claim are struck out.