TNSC Rural Development (Pty) Ltd and Another v Roadmac Surfacing Cape (Pty) Ltd (3642/2017) [2018] ZAECGHC 94 (9 October 2018)

TNSC Rural Development (Pty) Ltd and Another v Roadmac Surfacing Cape (Pty) Ltd (3642/2017) [2018] ZAECGHC 94 (9 October 2018)

The court held that the amendment to the exception did not affect its substance and did not entitle the plaintiffs to a further opportunity to remove the cause of complaint under Rule 23(1). The plaintiffs' amendment to their particulars of claim was a substantive new amendment delivered outside the prescribed period and was not a reply to the defendant's initial notice. Consequently, the defendant was not obliged to withdraw the exception and tender costs. The matter was properly before the court for determination of costs, and the defendant was entitled to the costs of the exception.

Citation
[2018] ZAECGHC 94
Parties
Plaintiff: TNSC Rural Development (Pty) Ltd; Plaintiff: Nwabisa Sellem; Defendant: Roadmac Surfacing Cape (Pty) Ltd
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
9 October 2018
Case Number
3642/2017
Procedural Posture
Exception Application / Exception to Particulars of Claim; Determination of Costs
Outcome
Exception not upheld as academic; costs awarded to defendant.
Judges
J M Roberson
Legal Topics
Exception Procedure, Pleading Requirements, Costs Award, Contractual Damages
Civil Procedure Commercial and Corporate Exception Procedure Pleading Requirements Costs Award Contractual Damages

Case Brief

Summary, issues, holding and outcome

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Parties

TNSC Rural Development (Pty) Ltd

Plaintiff

Nwabisa Sellem

Plaintiff

Roadmac Surfacing Cape (Pty) Ltd

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim; Determination of Costs

Legal Issues

  1. 1 Whether the plaintiffs' particulars of claim were vague and embarrassing or lacked averments to sustain an action.
  2. 2 Whether the defendant was entitled to costs of the exception after the plaintiffs amended their particulars of claim.
  3. 3 Whether the amendment to the exception provided the plaintiffs with a further opportunity to remove the cause of complaint under Rule 23(1).

Ratio Decidendi

The court held that the amendment to the exception did not affect its substance and did not entitle the plaintiffs to a further opportunity to remove the cause of complaint under Rule 23(1). The plaintiffs' amendment to their particulars of claim was a substantive new amendment delivered outside the prescribed period and was not a reply to the defendant's initial notice. Consequently, the defendant was not obliged to withdraw the exception and tender costs. The matter was properly before the court for determination of costs, and the defendant was entitled to the costs of the exception.

Court Disposition

Exception not upheld as academic; costs awarded to defendant.

Orders

  • The plaintiffs are to pay the costs of the defendant’s exception.