Van der Walt NO en Ander v Piet Bester Makelaars Bk en Ander (4359/2010) [2010] ZAFSHC 160 (9 December 2010)

Van der Walt NO en Ander v Piet Bester Makelaars Bk en Ander (4359/2010) [2010] ZAFSHC 160 (9 December 2010)

The court found that the first applicant's claim for delivery and debate of accounts is supported by the employment contract, specifically clauses 22 and 24, which provide for reconciliation upon termination of service. Although the particulars of claim do not expressly reference the contractual right, the nature of the dispute and the contract's provisions render the claim not excipiable. In contrast, the second applicant's claim for payment of the insurance policy proceeds lacks essential allegations regarding the basis of entitlement, the existence and acceptance of a stipulatio alteri, and whether the policy has been paid out. The particulars of claim are thus excipiable and must be...

Citation
[2010] ZAFSHC 160
Parties
Applicant: Hugo Eunomy van der Walt N.O.; Applicant: Johanna Elizabeth van der Walt; Respondent: Piet Bester Makelaars BK; Respondent: Old Mutual Life Assurance Company (South Africa) BPK
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 December 2010
Case Number
4359/2010
Procedural Posture
Civil Procedure / Exception Hearing
Outcome
First respondent's exception to the first applicant's claim is dismissed. First respondent's exception to the second applicant's claim is upheld. Second applicant's particulars of claim are struck out, with leave to amend within 30 days.
Judges
A Kruger, R
Legal Topics
Debate of Account, Contractual Entitlement, Insurance Policy Proceeds, Stipulatio Alteri
Civil Procedure Commercial and Corporate Debate of Account Contractual Entitlement Insurance Policy Proceeds Stipulatio Alteri

Case Brief

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Parties

Hugo Eunomy van der Walt N.O.

Applicant

Johanna Elizabeth van der Walt

Applicant

Piet Bester Makelaars BK

Respondent

Old Mutual Life Assurance Company (South Africa) BPK

Respondent

Procedural Posture

Civil Procedure / Exception Hearing

Legal Issues

  1. 1 Whether the first applicant has a contractual or other right to demand delivery and debate of an account from the first respondent.
  2. 2 Whether the particulars of claim of the second applicant disclose a valid cause of action for payment of the insurance policy proceeds.
  3. 3 Whether the second applicant has pleaded sufficient facts to establish entitlement to the insurance proceeds as a third-party beneficiary.

Ratio Decidendi

The court found that the first applicant's claim for delivery and debate of accounts is supported by the employment contract, specifically clauses 22 and 24, which provide for reconciliation upon termination of service. Although the particulars of claim do not expressly reference the contractual right, the nature of the dispute and the contract's provisions render the claim not excipiable. In contrast, the second applicant's claim for payment of the insurance policy proceeds lacks essential allegations regarding the basis of entitlement, the existence and acceptance of a stipulatio alteri, and whether the policy has been paid out. The particulars of claim are thus excipiable and must be...

Court Disposition

First respondent's exception to the first applicant's claim is dismissed. First respondent's exception to the second applicant's claim is upheld. Second applicant's particulars of claim are struck out, with leave to amend within 30 days.

Orders

  • First respondent's exception to the first applicant's claim for delivery and debate of accounts is dismissed.
  • First respondent's exception to the second applicant's claim for payment of R1,000,000 is upheld.