Vogler and Another v First For Women (Pty) Limited and Others (21019/2019) [2021] ZAWCHC 101 (18 May 2021)

Vogler and Another v First For Women (Pty) Limited and Others (21019/2019) [2021] ZAWCHC 101 (18 May 2021)

The court found that the particulars of claim, even as amended, failed to allege any contract or contractual terms between the Plaintiffs and the Third Defendant, nor did they set out material facts establishing a delictual duty of care or actionable negligence. The allegations were general, conflated, and lacked the necessary particularity to enable the Third Defendant to plead meaningfully. The amendment would not cure these deficiencies but would further complicate the pleadings, rendering them excipiable, vague, and embarrassing. The right to amend is not absolute and must be supported by a factual foundation. In this case, the proposed amendment lacked such foundation and would...

Citation
[2021] ZAWCHC 101
Parties
Plaintiff: Debporah Anne Vőgler; Plaintiff: Marko Illya Vőgler; Defendant: First For Women (Pty) Limited; Defendant: Telesure Investment Holdings; Defendant: Lipco Group (Pty) Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 May 2021
Case Number
21019/2019
Procedural Posture
Civil Application / Application for Leave to Amend Particulars of Claim Under Rule 28
Outcome
Application for leave to amend dismissed with costs.
Judges
CN NZIWENI
Legal Topics
Pleading Amendment, Excipiability, Breach of Contract, Pure Economic Loss, Duty of Care, Vicarious Liability
Civil Procedure Commercial and Corporate Pleading Amendment Excipiability Breach of Contract Pure Economic Loss Duty of Care Vicarious Liability

Case Brief

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Parties

Debporah Anne Vőgler

Plaintiff

Marko Illya Vőgler

Plaintiff

First For Women (Pty) Limited

Defendant

Telesure Investment Holdings

Defendant

Lipco Group (Pty) Limited

Defendant

Procedural Posture

Civil Application / Application for Leave to Amend Particulars of Claim Under Rule 28

Legal Issues

  1. 1 Whether the particulars of claim, as amended, contain sufficient averments to sustain a cause of action against the Third Defendant.
  2. 2 Whether the proposed amendment should be allowed under Rule 28 of the Uniform Rules of Court.
  3. 3 Whether the amendment would render the pleading excipiable, vague, or embarrassing.

Ratio Decidendi

The court found that the particulars of claim, even as amended, failed to allege any contract or contractual terms between the Plaintiffs and the Third Defendant, nor did they set out material facts establishing a delictual duty of care or actionable negligence. The allegations were general, conflated, and lacked the necessary particularity to enable the Third Defendant to plead meaningfully. The amendment would not cure these deficiencies but would further complicate the pleadings, rendering them excipiable, vague, and embarrassing. The right to amend is not absolute and must be supported by a factual foundation. In this case, the proposed amendment lacked such foundation and would...

Court Disposition

Application for leave to amend dismissed with costs.

Orders

  • The application for an amendment in terms of the notice of motion dated 7 July 2020 is dismissed with costs.
  • Such costs to include the services of a Counsel.