Tayob N.O and Another v Public Investment Corporation (PIC) and Another (61684/21) [2022] ZAGPPHC 753 (6 October 2022)

Tayob N.O and Another v Public Investment Corporation (PIC) and Another (61684/21) [2022] ZAGPPHC 753 (6 October 2022)

The court held that while the plaintiffs' particulars of claim, on their face, disclose a cause of action for recovery of a debt allegedly due by the first defendant under Regulation 4(c)(ii) of the Currency and Exchanges Act, the claim cannot be enforced due to the legal impediments created by the regulation and the consequences of the repealed policy. The plaintiffs failed to seek an order declaring the relevant policy and ministerial decisions invalid or set aside, which is necessary to overcome the continuing legal consequences of those actions. The court found that the particulars of claim are excipiable and upheld the first defendant's exception with costs.

Citation
[2022] ZAGPPHC 753
Parties
Plaintiff: Rehana Surtie Tayob N.O.; Plaintiff: Edward Jeffrey Koorbanally; Defendant: Public Investment Corporation (PIC); Defendant: ABSA Group Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 October 2022
Case Number
61684/21
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim
Outcome
Exception upheld with costs.
Judges
Ndlokovane
Legal Topics
Exception Procedure, Special Restricted Account, Ministerial Discretion, Currency and Exchanges Act, Debt Recovery
Civil Procedure Banking and Finance Exception Procedure Special Restricted Account Ministerial Discretion Currency and Exchanges Act Debt Recovery

Case Brief

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Parties

Rehana Surtie Tayob N.O.

Plaintiff

Edward Jeffrey Koorbanally

Plaintiff

Public Investment Corporation (PIC)

Defendant

ABSA Group Limited

Defendant

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs' amended particulars of claim disclose a cause of action against the first defendant.
  2. 2 Whether the plaintiffs must seek an order declaring the apartheid-era policy and relevant regulations invalid, unconstitutional, or reviewed and set aside before claiming payment.
  3. 3 Whether the plaintiffs have pleaded sufficient facts to establish entitlement to the funds allegedly held in a special restricted account.

Ratio Decidendi

The court held that while the plaintiffs' particulars of claim, on their face, disclose a cause of action for recovery of a debt allegedly due by the first defendant under Regulation 4(c)(ii) of the Currency and Exchanges Act, the claim cannot be enforced due to the legal impediments created by the regulation and the consequences of the repealed policy. The plaintiffs failed to seek an order declaring the relevant policy and ministerial decisions invalid or set aside, which is necessary to overcome the continuing legal consequences of those actions. The court found that the particulars of claim are excipiable and upheld the first defendant's exception with costs.

Court Disposition

Exception upheld with costs.

Orders

  • The first defendant's exception to the plaintiffs' amended particulars of claim is upheld.
  • The plaintiffs are ordered to pay the costs of the exception.