Risseeuw NO v Alanza Boerdery (EDMS) BPK (36448/13) [2014] ZAGPPHC 111 (20 March 2014)

Risseeuw NO v Alanza Boerdery (EDMS) BPK (36448/13) [2014] ZAGPPHC 111 (20 March 2014)

The court held that the exception must succeed on the first ground, as all trustees must be joined to enforce a right of the trust, in accordance with binding authority. The second and fourth grounds of exception also succeed, as the particulars of claim fail to allege material facts required by law, specifically the written authority of the other trustees and the written exercise of the option within the stipulated period. The third ground fails, as the contractual provisions, properly interpreted, do not require exercise of the option only upon expiry of the lease. The fifth ground succeeds, as there is no contractual obligation for the defendant to sign the draft sale agreement. The...

Citation
[2014] ZAGPPHC 111
Parties
Plaintiff: Jacobus Nicolaas Risseeuw NO; Defendant: Alanza Boerdery (EDMS) BPK
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 March 2014
Case Number
36448/13
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld on all grounds except one; plaintiff granted leave to amend particulars of claim; costs awarded against plaintiff.
Judges
Tuchten
Legal Topics
Trustee Locus Standi, Option to Purchase, Facta Probanda Vs Facta Probantia, Sale of Land, Exception Procedure
Civil Procedure Land and Property Trustee Locus Standi Option to Purchase Facta Probanda Vs Facta Probantia Sale of Land Exception Procedure

Case Brief

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Parties

Jacobus Nicolaas Risseeuw NO

Plaintiff

Alanza Boerdery (EDMS) BPK

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether all trustees must be joined as parties to enforce a right of the trust.
  2. 2 Whether the particulars of claim disclose all material facts required to sustain a cause of action.
  3. 3 Whether the option to purchase was validly and timeously exercised.

Ratio Decidendi

The court held that the exception must succeed on the first ground, as all trustees must be joined to enforce a right of the trust, in accordance with binding authority. The second and fourth grounds of exception also succeed, as the particulars of claim fail to allege material facts required by law, specifically the written authority of the other trustees and the written exercise of the option within the stipulated period. The third ground fails, as the contractual provisions, properly interpreted, do not require exercise of the option only upon expiry of the lease. The fifth ground succeeds, as there is no contractual obligation for the defendant to sign the draft sale agreement. The...

Court Disposition

Exception upheld on all grounds except one; plaintiff granted leave to amend particulars of claim; costs awarded against plaintiff.

Orders

  • The exception grounds in the defendant's notice of exception dated 3 September 2013, except for the ground in paragraph 4 thereof, are upheld.
  • Leave is granted to the plaintiff to amend the particulars of claim in terms of Rule 28 within 15 days of this order.