Shabir v Traders Square Investment Company (Pty) Ltd (37176/06 , 37184/06 , 37185/06) [2007] ZAGPHC 118 (22 June 2007)

Shabir v Traders Square Investment Company (Pty) Ltd (37176/06 , 37184/06 , 37185/06) [2007] ZAGPHC 118 (22 June 2007)

The court held that the plaintiff's particulars of claim, in respect of the first cause of action, sufficiently allege the existence and exercise of an oral option to lease, and thus disclose a cause of action. The defendant's exception on this ground was dismissed, as the arguments raised were either incorrect or not covered by the grounds of exception. However, the alternative cause of action, which was based on an agreement to agree, failed to allege a mechanism for completing the agreement or the commencement date of the lease, rendering it void for vagueness and unenforceable. The exception to this alternative cause was upheld, and the relevant paragraph was set aside.

Citation
[2007] ZAGPHC 118
Parties
Plaintiff: Muhammad Shabir; Defendant: Traders Square Investment Company (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
22 June 2007
Case Number
37176/06, 37184/06, 37185/06
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception to the first cause of action dismissed; exception to the alternative cause of action upheld; plaintiff granted leave to amend; costs awarded to defendant.
Judges
B.R. Southwood
Legal Topics
Exception to Particulars of Claim, Lease Agreement, Agreement to Agree, Oral Contract, Declaratory Relief
Civil Procedure Commercial and Corporate Exception to Particulars of Claim Lease Agreement Agreement to Agree Oral Contract Declaratory Relief

Case Brief

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Parties

Muhammad Shabir

Plaintiff

Traders Square Investment Company (Pty) Ltd

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action for a declarator regarding an option to lease.
  2. 2 Whether an agreement to agree, as pleaded in the alternative cause of action, is legally enforceable.

Ratio Decidendi

The court held that the plaintiff's particulars of claim, in respect of the first cause of action, sufficiently allege the existence and exercise of an oral option to lease, and thus disclose a cause of action. The defendant's exception on this ground was dismissed, as the arguments raised were either incorrect or not covered by the grounds of exception. However, the alternative cause of action, which was based on an agreement to agree, failed to allege a mechanism for completing the agreement or the commencement date of the lease, rendering it void for vagueness and unenforceable. The exception to this alternative cause was upheld, and the relevant paragraph was set aside.

Court Disposition

Exception to the first cause of action dismissed; exception to the alternative cause of action upheld; plaintiff granted leave to amend; costs awarded to defendant.

Orders

  • The exception in respect of the first cause of action is dismissed.
  • The exception in respect of the alternative cause of action alleged in paragraph 11 of the particulars of claim is upheld and the paragraph is set aside.