Schwartz and Others v Andre NO and Others (34615/16) [2017] ZAGPPHC 563 (16 August 2017)

Schwartz and Others v Andre NO and Others (34615/16) [2017] ZAGPPHC 563 (16 August 2017)

The court found that the second plaintiff failed to set out the material terms of fact and/or law necessary to sustain a cause of action against the defendants. The particulars of claim did not adequately plead the existence and terms of the lease agreement between Werner Engineering CC and Dytro CC, nor did they specify who represented the parties or when the agreement was reached. As a result, the exception was upheld, and the plaintiff was granted leave to amend its particulars of claim within 20 days.

Citation
[2017] ZAGPPHC 563
Parties
Plaintiff: Werner Wolfgang Schwarz; Plaintiff: Werner Engineering CC; Defendant: Jacques Andre N.O.; Defendant: Sumaiya Abdool Gafaar Khammissa N.O.; Defendant: Mabuthu Louis Mhlongo N.O.; Defendant: Ernest van der Walt
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 August 2017
Case Number
34615/16
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld with costs. Plaintiff granted leave to amend particulars of claim within 20 days.
Judges
Windell
Legal Topics
Exception to Particulars of Claim, Cause of Action, Pleading Requirements
Civil Procedure Exception to Particulars of Claim Cause of Action Pleading Requirements

Case Brief

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Parties

Werner Wolfgang Schwarz

Plaintiff

Werner Engineering CC

Plaintiff

Jacques Andre N.O.

Defendant

Sumaiya Abdool Gafaar Khammissa N.O.

Defendant

Mabuthu Louis Mhlongo N.O.

Defendant

Ernest van der Walt

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the second plaintiff's particulars of claim disclose sufficient averments to sustain a cause of action against the defendants.
  2. 2 Whether the lease agreement between Werner Engineering CC and Dytro CC is adequately pleaded.
  3. 3 Whether the exception should be upheld due to lack of material terms in the particulars of claim.

Ratio Decidendi

The court found that the second plaintiff failed to set out the material terms of fact and/or law necessary to sustain a cause of action against the defendants. The particulars of claim did not adequately plead the existence and terms of the lease agreement between Werner Engineering CC and Dytro CC, nor did they specify who represented the parties or when the agreement was reached. As a result, the exception was upheld, and the plaintiff was granted leave to amend its particulars of claim within 20 days.

Court Disposition

Exception upheld with costs. Plaintiff granted leave to amend particulars of claim within 20 days.

Orders

  • The exception is upheld with costs.
  • The plaintiff is given 20 days within which to amend its particulars of claim.