Schwarz and Another v Andre NO and Others (34615/16) [2017] ZAGPJHC 461 (16 August 2017)

Schwarz and Another v Andre NO and Others (34615/16) [2017] ZAGPJHC 461 (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 specify the details of the alleged lease agreement between Werner Engineering CC and Dytro CC, nor did they identify the parties to that agreement or the circumstances under which it was concluded. The absence of these averments meant that the claim for declaratory relief regarding the proceeds from the sale of the Gildemeister machine was not properly pleaded. The exception was therefore upheld.

Citation
[2017] ZAGPJHC 461
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
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 August 2017
Case Number
34615/16
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld with costs. Plaintiff granted leave to amend particulars of claim within 20 days.
Judges
L Windell
Legal Topics
Exception to Particulars of Claim, Cause of Action, Pleading Requirements, Association Agreement, Statutory Hypothec
Civil Procedure Exception to Particulars of Claim Cause of Action Pleading Requirements Association Agreement Statutory Hypothec

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

Civil Procedure / 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 second plaintiff has pleaded the material terms of fact and/or law regarding the alleged debt owed by Dytro CC.
  3. 3 Whether the particulars of claim adequately set out the basis for the declaratory relief sought.

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 specify the details of the alleged lease agreement between Werner Engineering CC and Dytro CC, nor did they identify the parties to that agreement or the circumstances under which it was concluded. The absence of these averments meant that the claim for declaratory relief regarding the proceeds from the sale of the Gildemeister machine was not properly pleaded. The exception was therefore upheld.

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.