Van Der Berg and Another v Van Der Merwe and Others (2012/9803) [2012] ZAGPJHC 188 (17 September 2012)

Van Der Berg and Another v Van Der Merwe and Others (2012/9803) [2012] ZAGPJHC 188 (17 September 2012)

The court found that the third defendant was improperly joined as no cause of action was pleaded against it and judgment had already been obtained against it in prior proceedings. The particulars of claim were found to be vague and embarrassing because the plaintiffs' claim for payment of R370,000 was irreconcilable with the magistrate's court order, which declared the agreement null and void and ordered restoration rather than payment. The 'acknowledgement' document referenced a non-existent judgment debt, and the first defendant's purported acceptance of liability was therefore invalid. The exception was upheld on both grounds.

Citation
[2012] ZAGPJHC 188
Parties
Plaintiff: Jacobus Rudolf Van Der Berg; Plaintiff: Maria Magdaglen Van Der Berg; Defendant: Gysbert Charmes Van Der Merwe; Defendant: Glynnis Lyn Van Der Merwe; Defendant: Topaz Lake 39 CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 September 2012
Case Number
2012/9803
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld; particulars of claim set aside; leave to amend granted; costs awarded against plaintiffs.
Judges
FHD Van Oosten
Legal Topics
Misjoinder, Vague and Embarrassing Pleading, Exception to Particulars of Claim
Civil Procedure Misjoinder Vague and Embarrassing Pleading Exception to Particulars of Claim

Case Brief

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Parties

Jacobus Rudolf Van Der Berg

Plaintiff

Maria Magdaglen Van Der Berg

Plaintiff

Gysbert Charmes Van Der Merwe

Defendant

Glynnis Lyn Van Der Merwe

Defendant

Topaz Lake 39 CC

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the third defendant was properly joined as a party to the action.
  2. 2 Whether the plaintiffs' particulars of claim are vague and embarrassing due to contradictions with the prior magistrate's court judgment.
  3. 3 Whether the claim based on the 'acknowledgement' document constitutes a valid cause of action.

Ratio Decidendi

The court found that the third defendant was improperly joined as no cause of action was pleaded against it and judgment had already been obtained against it in prior proceedings. The particulars of claim were found to be vague and embarrassing because the plaintiffs' claim for payment of R370,000 was irreconcilable with the magistrate's court order, which declared the agreement null and void and ordered restoration rather than payment. The 'acknowledgement' document referenced a non-existent judgment debt, and the first defendant's purported acceptance of liability was therefore invalid. The exception was upheld on both grounds.

Court Disposition

Exception upheld; particulars of claim set aside; leave to amend granted; costs awarded against plaintiffs.

Orders

  • The exception relating to the mis-joinder of the third defendant is upheld.
  • The exception to the plaintiffs' particulars of claim is upheld.