Van Sittert and Another v Knobel (25232/17) [2018] ZAGPPHC 566 (6 July 2018)

Van Sittert and Another v Knobel (25232/17) [2018] ZAGPPHC 566 (6 July 2018)

The court found that all three grounds of exception raised by Defendants were without merit. The Second Defendant was a party to the contract and thus a necessary party to the proceedings. Plaintiff was not required to allege registered ownership, only co-ownership, as South African law recognises extrinsic evidence of ownership and the negative system of proof. The issue of prescription could not be decided on exception and must be raised by special plea, as there was a dispute regarding when the cause of action arose. The particulars of claim disclosed a cause of action and the exception was dismissed.

Citation
[2018] ZAGPPHC 566
Parties
Defendant: Louise Therese van Sittert; Defendant: Hendrik Steyn van Sittert; Plaintiff: Pierre Daniel Rossouw Knobel
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 July 2018
Case Number
25232/17
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
Maakane
Legal Topics
Exception Procedure, Co Ownership, Actio Communi Dividundo, Prescription Act, Deeds Registries Act
Civil Procedure Land and Property Exception Procedure Co Ownership Actio Communi Dividundo Prescription Act Deeds Registries Act

Case Brief

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Parties

Louise Therese van Sittert

Defendant

Hendrik Steyn van Sittert

Defendant

Pierre Daniel Rossouw Knobel

Plaintiff

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim lack averments necessary to sustain a cause of action.
  2. 2 Whether the Second Defendant, not being a registered owner, can be a party to the contract and transfer ownership.
  3. 3 Whether Plaintiff's failure to allege registered ownership precludes his claim for termination of co-ownership.

Ratio Decidendi

The court found that all three grounds of exception raised by Defendants were without merit. The Second Defendant was a party to the contract and thus a necessary party to the proceedings. Plaintiff was not required to allege registered ownership, only co-ownership, as South African law recognises extrinsic evidence of ownership and the negative system of proof. The issue of prescription could not be decided on exception and must be raised by special plea, as there was a dispute regarding when the cause of action arose. The particulars of claim disclosed a cause of action and the exception was dismissed.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs.