Volschenk v Lambrechts and Another (53673/2012) [2018] ZAGPPHC 555 (3 August 2018)

Volschenk v Lambrechts and Another (53673/2012) [2018] ZAGPPHC 555 (3 August 2018)

The court held that the defendants' amended counterclaim contained sufficient averments to sustain their cause of action. The particulars of the address and proof of delivery of the demand are matters for trial and do not need to be pleaded in detail at the exception stage. The defendants adequately pleaded compliance with the lex commissoria and the communication of cancellation. The requirements for repudiation and restitution were also sufficiently pleaded, and any further factual disputes are to be determined at trial. The exception was therefore dismissed as the complaints raised were without merit.

Citation
[2018] ZAGPPHC 555
Parties
Plaintiff: Cornelius Gabriel Volschenk; Defendant: Judith Lambrechts N.O.; Defendant: Judith Lambrechts
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 August 2018
Case Number
53673/2012
Procedural Posture
Civil Procedure / Exception to Amended Counterclaim
Outcome
Application dismissed with costs.
Judges
A A Crutchfield
Legal Topics
Exception Procedure, Lex Commissoria, Contract Cancellation, Restitution, Repudiation, Pleading Requirements
Civil Procedure Land and Property Exception Procedure Lex Commissoria Contract Cancellation Restitution Repudiation Pleading Requirements

Case Brief

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Parties

Cornelius Gabriel Volschenk

Plaintiff

Judith Lambrechts N.O.

Defendant

Judith Lambrechts

Defendant

Procedural Posture

Civil Procedure / Exception to Amended Counterclaim

Legal Issues

  1. 1 Whether the defendants adequately pleaded entitlement to cancel the Deed of Sale.
  2. 2 Whether the Deed of Sale was properly and lawfully cancelled.
  3. 3 Whether the defendants tendered restitution or provided a valid excuse for not doing so.

Ratio Decidendi

The court held that the defendants' amended counterclaim contained sufficient averments to sustain their cause of action. The particulars of the address and proof of delivery of the demand are matters for trial and do not need to be pleaded in detail at the exception stage. The defendants adequately pleaded compliance with the lex commissoria and the communication of cancellation. The requirements for repudiation and restitution were also sufficiently pleaded, and any further factual disputes are to be determined at trial. The exception was therefore dismissed as the complaints raised were without merit.

Court Disposition

Application dismissed with costs.

Orders

  • The exception is dismissed with costs.
  • The costs of the application shall follow the merits.