S v S (347/2015) [2016] ZAFSHC 77 (19 May 2016)

S v S (347/2015) [2016] ZAFSHC 77 (19 May 2016)

The court found that the first defendant's amended counterclaim, although possibly vague or embarrassing in its phrasing, does disclose a cause of action based on universal partnership. The exceptions raised by the plaintiff were based on legal technicalities rather than the substance of the claim. The proper course would have been to require the first defendant to remove the cause of complaint by amendment, as envisaged in Rule 23(1), rather than to uphold the exception. In the interests of justice and fairness, the first defendant was granted an opportunity to amend her counterclaim to address the complaints raised.

Citation
[2016] ZAFSHC 77
Parties
Plaintiff: D. J. S.; Defendant: A. E. S.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 May 2016
Case Number
347/2015
Procedural Posture
Civil Procedure / Exception to Amended Counterclaim in Defended Divorce Action
Outcome
Exception dismissed; first defendant granted leave to amend counterclaim.
Judges
Moloi
Legal Topics
Universal Partnership, Exception Procedure, Pleading Requirements, Trust Property Control Act, Counterclaim, Company Shareholding
Civil Procedure Family and Children Commercial and Corporate Universal Partnership Exception Procedure Pleading Requirements Trust Property Control Act Counterclaim +1 more

Case Brief

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Parties

D. J. S.

Plaintiff

A. E. S.

Defendant

Procedural Posture

Civil Procedure / Exception to Amended Counterclaim in Defended Divorce Action

Legal Issues

  1. 1 Whether the first defendant's amended counterclaim discloses a cause of action based on universal partnership.
  2. 2 Whether the exception taken by the plaintiff addresses the substance or merely the phrasing of the counterclaim.
  3. 3 Whether the alleged quasi partnership and trust arrangements offend the Trust Property Control Act.

Ratio Decidendi

The court found that the first defendant's amended counterclaim, although possibly vague or embarrassing in its phrasing, does disclose a cause of action based on universal partnership. The exceptions raised by the plaintiff were based on legal technicalities rather than the substance of the claim. The proper course would have been to require the first defendant to remove the cause of complaint by amendment, as envisaged in Rule 23(1), rather than to uphold the exception. In the interests of justice and fairness, the first defendant was granted an opportunity to amend her counterclaim to address the complaints raised.

Court Disposition

Exception dismissed; first defendant granted leave to amend counterclaim.

Orders

  • The exception is dismissed.
  • The first defendant is given twenty (20) days to remove the cause of the complaint raised against the relevant paragraphs of her Amended Counterclaim dated 21 January 2016.