Poltimore Trading (Pty) Ltd v Naude and Others (16858/2011) [2013] ZAGPPHC 256 (27 August 2013)

Poltimore Trading (Pty) Ltd v Naude and Others (16858/2011) [2013] ZAGPPHC 256 (27 August 2013)

The court found that the particulars of claim failed to allege that the plaintiff was a party to the agreement or accepted the benefit of a stipulatio alteri. The claim was based on an 'agreement to agree', which is unenforceable because the price for the building contract was left open for future negotiation. The absence of a prayer for damages and the lack of clarity regarding the plaintiff's capacity further rendered the particulars vague and embarrassing. The exception was upheld, and the particulars of claim were struck out, with leave to amend.

Citation
[2013] ZAGPPHC 256
Parties
Plaintiff: Poltimore Trading (Pty) Ltd; Defendant: Riaan Naude; Defendant: Marlise Naude; Defendant: Harry van Bebber; Defendant: Fred Sherriff
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 August 2013
Case Number
16858/2011
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld; particulars of claim struck out with costs; leave to amend granted.
Judges
F G Preller
Legal Topics
Exception Procedure, Agreement to Agree, Pactum De Contrahendo, Repudiation, Damages Claim
Civil Procedure Commercial and Corporate Exception Procedure Agreement to Agree Pactum De Contrahendo Repudiation Damages Claim

Case Brief

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Parties

Poltimore Trading (Pty) Ltd

Plaintiff

Riaan Naude

Defendant

Marlise Naude

Defendant

Harry van Bebber

Defendant

Fred Sherriff

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim disclose a cause of action against the defendants.
  2. 2 Whether the plaintiff was a party to the agreement or accepted the benefit of a stipulatio alteri.
  3. 3 Whether the claim is based on an unenforceable 'agreement to agree'.

Ratio Decidendi

The court found that the particulars of claim failed to allege that the plaintiff was a party to the agreement or accepted the benefit of a stipulatio alteri. The claim was based on an 'agreement to agree', which is unenforceable because the price for the building contract was left open for future negotiation. The absence of a prayer for damages and the lack of clarity regarding the plaintiff's capacity further rendered the particulars vague and embarrassing. The exception was upheld, and the particulars of claim were struck out, with leave to amend.

Court Disposition

Exception upheld; particulars of claim struck out with costs; leave to amend granted.

Orders

  • The exception is upheld with costs.
  • The particulars of claim are struck out.