Starstruck Trading CC t/a Dynamic Construction and Developments v Kohne and Another (4715/2020P) [2024] ZAKZPHC 76 (29 August 2024)

Starstruck Trading CC t/a Dynamic Construction and Developments v Kohne and Another (4715/2020P) [2024] ZAKZPHC 76 (29 August 2024)

The court found that the second defendant failed to demonstrate vagueness amounting to embarrassment and embarrassment amounting to prejudice. The particulars of claim, while framed in an unusual manner, set out sufficient material facts for the defendants to plead. The difficulty lies only in the label to be attached to the agreement, not in the facts themselves. The plaintiff included the emails as additional information to assist in determining the terms of the agreement. The court held that there is no defect or incompleteness in the particulars of claim that would prejudice the defendants. Accordingly, the exception must fail.

Citation
[2024] ZAKZPHC 76
Parties
Plaintiff: Starstruck Trading CC t/a Dynamic Construction and Developments; Defendant: Nicola Jane Köhne; Defendant: Leon Robert Köhne
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
29 August 2024
Case Number
4715/2020P
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
The second defendant's exception is dismissed with costs, such costs to be in accordance with scale B.
Judges
E Bezuidenhout
Legal Topics
Vague and Embarrassing Pleading, Contractual Certainty, Exception Procedure, Oral Vs Written Contract, Pleading Particularity
Civil Procedure Commercial and Corporate Vague and Embarrassing Pleading Contractual Certainty Exception Procedure Oral Vs Written Contract Pleading Particularity

Case Brief

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Parties

Starstruck Trading CC t/a Dynamic Construction and Developments

Plaintiff

Nicola Jane Köhne

Defendant

Leon Robert Köhne

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim are vague and embarrassing to the extent that the second defendant cannot plead to them.
  2. 2 Whether the plaintiff has sufficiently pleaded the nature and terms of the alleged agreement (oral, written, or partly oral and partly written).

Ratio Decidendi

The court found that the second defendant failed to demonstrate vagueness amounting to embarrassment and embarrassment amounting to prejudice. The particulars of claim, while framed in an unusual manner, set out sufficient material facts for the defendants to plead. The difficulty lies only in the label to be attached to the agreement, not in the facts themselves. The plaintiff included the emails as additional information to assist in determining the terms of the agreement. The court held that there is no defect or incompleteness in the particulars of claim that would prejudice the defendants. Accordingly, the exception must fail.

Court Disposition

The second defendant's exception is dismissed with costs, such costs to be in accordance with scale B.

Orders

  • The second defendant’s exception is dismissed with costs, such costs to be in accordance with scale B.