Tlale NO and Another v Momentum Group Ltd (3471/2007) [2011] ZAFSHC 30 (17 February 2011)

Tlale NO and Another v Momentum Group Ltd (3471/2007) [2011] ZAFSHC 30 (17 February 2011)

The court found that the third party notice was excipiable and would remain so even if amended as proposed, because it sought relief that cannot be claimed in delict—namely, an order obliging the third party to pay the defendants’ creditor to extinguish the defendants’ debt. The notice failed to state any relief or remedy claimed, contravening rule 13(2), and did not allege damages suffered by the defendants. The applicants’ arguments regarding the scope of the exception and the alleged inconsistency in the order were rejected. The court held that the defendants are not without remedy, as they could claim payment of damages from the third party, but the current pleading did not do so. No...

Citation
[2011] ZAFSHC 30
Parties
Applicant: Phuti Joyce Tlale N.O.; Applicant: Phuti Joyce Tlale; Respondent: Momentum Group Limited
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 February 2011
Case Number
3471/2007
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Exception and Amendment Proceedings
Outcome
Application for leave to appeal dismissed with costs.
Judges
C H G van der Merwe
Legal Topics
Exception Procedure, Third Party Notice, Leave to Appeal, Damages Claim, Pleading Requirements
Civil Procedure Delict Exception Procedure Third Party Notice Leave to Appeal Damages Claim Pleading Requirements

Case Brief

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Parties

Phuti Joyce Tlale N.O.

Applicant

Phuti Joyce Tlale

Applicant

Momentum Group Limited

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Exception and Amendment Proceedings

Legal Issues

  1. 1 Whether there are reasonable prospects of success on appeal against the orders upholding the exception and striking out the third party notice.
  2. 2 Whether the relief claimed in the third party notice is legally sustainable in delict.
  3. 3 Whether the third party notice complies with rule 13(2) and adequately pleads damages suffered by the defendants.

Ratio Decidendi

The court found that the third party notice was excipiable and would remain so even if amended as proposed, because it sought relief that cannot be claimed in delict—namely, an order obliging the third party to pay the defendants’ creditor to extinguish the defendants’ debt. The notice failed to state any relief or remedy claimed, contravening rule 13(2), and did not allege damages suffered by the defendants. The applicants’ arguments regarding the scope of the exception and the alleged inconsistency in the order were rejected. The court held that the defendants are not without remedy, as they could claim payment of damages from the third party, but the current pleading did not do so. No...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.