Renosternberg Local Municipality v Jorian Construction and Another (1217/2015) [2020] ZANCHC 70 (9 October 2020)

Renosternberg Local Municipality v Jorian Construction and Another (1217/2015) [2020] ZANCHC 70 (9 October 2020)

The court found that the Rule 30(1) application was withdrawn only at the commencement of proceedings, despite the plaintiff's tender to withdraw and pay costs earlier. The application was fatally flawed as leave for joinder had already been granted by the court, and the procedure followed was not irregular. Regarding the exception, the court held that non-compliance with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act is not a ground for exception and must be pleaded by the defendant. The particulars of claim, when read as a whole, sufficiently pleaded the elements of unjust enrichment. The alternative claim based on the settlement agreement was...

Citation
[2020] ZANCHC 70
Parties
Applicant: Renosterberg Local Municipality; Respondent: Jorian Construction; Respondent: Tshenelo Resources (Pty) Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
9 October 2020
Case Number
1217/2015
Procedural Posture
Civil Application / Exception and Costs Following Withdrawal of Rule 30(1) Application
Outcome
The exception is dismissed with costs. The second defendant is ordered to pay the costs of the Rule 30 application on an attorney and own client scale.
Judges
Van Tonder
Legal Topics
Joinder of Parties, Exception Procedure, Unjust Enrichment, Institution of Legal Proceedings Against Organs of State, Pleading Requirements
Civil Procedure Commercial and Corporate Joinder of Parties Exception Procedure Unjust Enrichment Institution of Legal Proceedings Against Organs of State Pleading Requirements

Case Brief

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Parties

Renosterberg Local Municipality

Applicant

Jorian Construction

Respondent

Tshenelo Resources (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Exception and Costs Following Withdrawal of Rule 30(1) Application

Legal Issues

  1. 1 Whether the joinder of the applicant by amendment under Rule 28 instead of Rule 10 constitutes an irregular step.
  2. 2 Whether the plaintiff's amended particulars of claim disclose a cause of action for unjust enrichment against the second defendant.
  3. 3 Whether the plaintiff complied with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act, No 40 of 2002.

Ratio Decidendi

The court found that the Rule 30(1) application was withdrawn only at the commencement of proceedings, despite the plaintiff's tender to withdraw and pay costs earlier. The application was fatally flawed as leave for joinder had already been granted by the court, and the procedure followed was not irregular. Regarding the exception, the court held that non-compliance with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act is not a ground for exception and must be pleaded by the defendant. The particulars of claim, when read as a whole, sufficiently pleaded the elements of unjust enrichment. The alternative claim based on the settlement agreement was...

Court Disposition

The exception is dismissed with costs. The second defendant is ordered to pay the costs of the Rule 30 application on an attorney and own client scale.

Orders

  • The Exception is dismissed with costs in respect of both case number 1217/2015 and case number 2622/2016.
  • The second defendant is ordered to pay the costs of the Rule 30 application in respect of case number 1217/2015 on an attorney and own client scale.