Van Staden NO en 'n Ander v Visscher en Andere (3753/2007) [2008] ZAGPHC 46 (21 February 2008)

Van Staden NO en 'n Ander v Visscher en Andere (3753/2007) [2008] ZAGPHC 46 (21 February 2008)

The court held that the applicants' amended particulars of claim do not disclose a cause of action for monetary relief against the first and second respondents. The applicants failed to allege that restitution of the shares is impossible or that the shares no longer exist, which is a statutory requirement under section 32(3) of the Insolvency Act for claiming the value of the property. The applicants' reliance on the consequences of setting aside the transaction does not override the need to plead and prove impossibility of restitution. The statutory provisions must be strictly applied, and the applicants' pleadings are incomplete and defective in this respect. Accordingly, the exception...

Citation
[2008] ZAGPHC 46
Parties
Applicant: Petrus Jacobus Maryn van Staden N.O.; Applicant: Nakedi Mathews Phosa N.O.; Respondent: Johanna Francina Visscher; Respondent: Christoffel Visscher; Respondent: GDG Properties Jeffreys Bay (Edms) Bpk; Respondent: P W Hancke en Kie Prokureurs
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
21 February 2008
Case Number
3753/2007
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim
Outcome
Exception upheld; paragraphs 8-18 of the amended particulars of claim are struck out; applicants to pay costs; leave granted to amend within 20 days.
Judges
Southwood
Legal Topics
Exception to Pleadings, Insolvency Act, Cause of Action, Pleading Requirements
Civil Procedure Commercial and Corporate Exception to Pleadings Insolvency Act Cause of Action Pleading Requirements

Case Brief

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Parties

Petrus Jacobus Maryn van Staden N.O.

Applicant

Nakedi Mathews Phosa N.O.

Applicant

Johanna Francina Visscher

Respondent

Christoffel Visscher

Respondent

GDG Properties Jeffreys Bay (Edms) Bpk

Respondent

P W Hancke en Kie Prokureurs

Respondent

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the amended particulars of claim disclose a cause of action for monetary relief against the first and second respondents.
  2. 2 Whether the applicants have pleaded the necessary facts to support a claim under section 32(3) of the Insolvency Act.
  3. 3 Whether the applicants are entitled to claim the value of the shares from the respondents without alleging impossibility of restitution.

Ratio Decidendi

The court held that the applicants' amended particulars of claim do not disclose a cause of action for monetary relief against the first and second respondents. The applicants failed to allege that restitution of the shares is impossible or that the shares no longer exist, which is a statutory requirement under section 32(3) of the Insolvency Act for claiming the value of the property. The applicants' reliance on the consequences of setting aside the transaction does not override the need to plead and prove impossibility of restitution. The statutory provisions must be strictly applied, and the applicants' pleadings are incomplete and defective in this respect. Accordingly, the exception...

Court Disposition

Exception upheld; paragraphs 8-18 of the amended particulars of claim are struck out; applicants to pay costs; leave granted to amend within 20 days.

Orders

  • The exception is upheld and paragraphs 8-18 of the amended particulars of claim are struck out.
  • The applicants are ordered to pay the costs of the exception.