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[2015] ZAGPJHC 157
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Giantos N.O and Others v Giantos and Another (32650/2014) [2015] ZAGPJHC 157 (31 July 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: 32650/2014
DATE: 31 JULY 2015
In the matter between:
ALEX GIANTSOS
N.O
...........................................................................................
FIRST
PLAINTIFF
JOHN GIANTSOS
N.O
......................................................................................
SECOND
PLAINTIFF
ALEX
GIANTSOS
.................................................................................................
THIRD
PLAINTIFF
JOHN
GIANTSOS
.............................................................................................
FOURTH
PLAINTIFF
And
PANAGIOTIS
GIANTSOS
...............................................................
1ST
DEFENDANT/EXCIPIENT
MASTER OF THE HIGH
COURT
........................................................................
2ND
DEFENDANT
JUDGMENT
Windell J:
INTRODUCTION
[1] This is an exception against the
plaintiff’s particulars of claim on the basis that it is vague
and embarrassing, alternatively,
that it fails to disclose a cause of
action.
[2] Essentially, the first and second
and third and fourth plaintiffs are the same people. They are the
grandchildren of the late
John Panagiotis Giantsos (hereinafter
referred to as Giantsos). The first and second plaintiffs are cited
in their nomino officio
capacities as the co-trustees of a
Testamentary Trust (“the Trust”) and the third and fourth
plaintiffs are cited in
their personal capacities as the capital
beneficiaries of the Trust.
[3] The plaintiffs have instituted
action against the first defendant for payment of damages and
rendering of an account together
with the debatement thereof. The
basis of the claim against the first defendant is that he failed to
carry out his duties as an
erstwhile trustee of the Trust and that
this has caused damage.
BACKGROUND
[4] Giantsos had two sons namely
Panagiotis, the first defendant, and Anastasios. Giantsos passed away
in 1986 and in his last will
and testament he made provision for a
Testamentary Trust. The first defendant; Anastasios and a certain
George Cambanis were appointed
as trustees. The will further provided
that the Giantsos grandchildren, the third and fourth plaintiffs,
were the sole heirs of
the residue of his estate. In terms of the
will the Trust would terminate upon the death of either of Giantsos
two sons. Upon
termination of the Trust the third and fourth
plaintiffs as the capital beneficiaries of the Trust, would become
entitled to the
distribution of the residue of the estate.
[5] Cambanis resigned as trustee during
2005. It is common cause that the first defendant and Anastasios were
removed as trustees
on 1 November 2011, after a successful
application in the High Court Pretoria. The first and second
plaintiffs were appointed as
the new trustees. Accordingly the third
and fourth defendants, who are in their personal capacities the
capital beneficiaries of
the Trust, are also the new trustees of the
Trust. It is further common cause that Giantsos two sons are both
still alive and the
Trust has not been terminated.
THE SUMMONS
[6] The plaintiffs set out the duties
of the erstwhile trustees and allege that the first defendant
breached his duties as trustee
in the following manner:
1. He failed to maintain the immovable
properties and in particular to ensure that their capital value was
protected by regular
maintenance.
2. He failed to maintain insurance on
the immovable properties and the President street property in
particular was severely damaged
by fire in 2009, which fire would
have been covered by insurance had an appropriate insurance policy
been taken out.
3. He failed to maintain investments in
various shares and stocks and he failed to account to the capital
beneficiaries in respect
of those investments in
shares and stocks.
4. He failed to account for the
proceeds of the sale of a motor vehicle during the financial year
ended February 1995.
5. He withdrew capital amounts from the
Trust and also allowed Anastasios to withdraw capital amounts.
Particulars of the amounts
are set out in the particulars of claim.
[7] The plaintiffs aver that as a
result of the breach of the first defendant’s duties and his
failure to exercise due care
as a bonus et diligens paterfamilias, he
is liable to the Trust, represented by the new trustees,
alternatively to the capital
beneficiaries, for damages in the amount
of R 4 161 449. The calculation of this amount is set out in
paragraph 26 of the particulars
of claim.
[8] In paragraph 27 of the particulars
of claim the first and second plaintiffs, alternatively the third and
fourth plaintiffs pray
for judgment against the first defendant.
THE FIRST EXCEPTION
[9] Any damages that might be payable
will constitute an asset in the estate. The excipient’s first
complaint is that the
third and fourth plaintiffs are cited in their
personal capacities as capital beneficiaries of the Trust, and they
failed to tender
to cede any amounts received by them to the first
and second plaintiffs on behalf of the Trust. As neither of Giantsos
sons have
passed, the third and fourth plaintiffs, as capital
beneficiaries, have not become entitled to a distribution of the
estate.
[10] Relying on Loedolff v Orphan
Chamber (1830) 1 Mentz 486, the excipient contends that since an
Aquilian action is compensatory
in character, a plaintiff suing for
damages must tender to cede to the trustee, the asset or assets in
respect of which the claim
was made. Insofar the third and fourth
plaintiffs seek payment to them, their failure to tender to cede any
amounts received by
them to the first and second plaintiff on behalf
of the Trust, render the particulars of claim vague and embarrassing;
alternatively
fails to disclose a cause of action.
[11] The first and second plaintiffs
are the owners of the Trust property and bring the claim based on
their duty as the trustees
of the Trust. The third and fourth
plaintiffs are the beneficiaries of the Trust. Actions or
applications brought on behalf of
a Trust to, for instance, recover
trust assets or to nullify transactions entered into by the Trust or
to recover damages from
a third party are “representative
actions or applications” and can only be prosecuted by the
trustees of the Trust.
There is however an exception to the general
rule which would permit the beneficiaries to bring the application,
the so-called
“Beningfield exception”.
[12] The “Beningfield exception“
was first recognised in the matter of Beningfield v Baxter
(1886) 12
AC 167
, a decision of the Privy Council on an appeal from the Supreme
Court of Natal. The “Beningfield exception” was applied
with approval to representative actions in the matter of Gross and
others v Pentz
[1996] ZASCA 78
;
1996 (4) SA 617
(AD). On page 628 I-J, Corbett CJ
stated as follows:
‘The next question is whether a
representative action in terms of the Beningfield principle is
available to beneficiaries
who have no vested right to the future
income or corpus of the trust. While the rights of such beneficiaries
are contingent, they
do, as the Court a quo observed (see 523I), have
vested interests in the proper administration of the trust. Although
there does
not appear to be any authority directly in point, I am of
the view that such a beneficiary may bring a representative action
(cf
Van Rensburg v Registrar of Deeds and Others
1924 CPD 508
at 510;
Mare v Grobler NO
1930 TPD 632
at 636-7)’.
[13] The first ground of exception goes
to the alternative claim of the third and the fourth plaintiffs only.
An exception can be
taken to a particular section of a pleading
provided that it is self-contained and amount themselves to a
separate claim. In casu
there is only one cause of action.
[14] In Trustees for the time being of
the Children’s Resources Centre Trust and Others v Pioneer
Foods (Pty) Ltd and Others
2013 1 All SA 646
(SCA) the Supreme Court
of Appeal reiterated the legal position of how a court should
approach an exception where it is alleged
that a claim does not have
the necessary averments to sustain a cause of action. At par 36
Wallis JA summarized it as follows:
“Causes of action are not in the
first instance dependant on questions of law. They require the
application of legal principle
to a particular factual matrix. The
test on exception is whether on all possible readings of the facts,
no cause of action is made
out. It is for the defendant to satisfy
the court that the conclusion of law for which the plaintiff contends
cannot be supported
upon every interpretation that can be put upon
the facts.
[15] The facts of the Loedolff v Orphan
Chamber matter differ from the facts in casu and can be
distinguished. It is common cause
that the third and fourth
plaintiffs are not entitled to have received anything from the Trust
to date and will not be entitled
until both of the income
beneficiaries have passed away. In the particulars of claim the third
and fourth plaintiffs in their personal
capacity based on the
Beningfield exception, pray for judgment against the first defendant
only in the event that judgment for
some reason cannot be obtained in
favor of first and second plaintiffs, or in case some basis is raised
as to why the first and
second plaintiffs as the new trustees are not
entitled to act. The third and fourth plaintiff’s claim is
only pleaded as
an alternative to first and second plaintiffs’
prayer and is a plus petitio. Its deletion will not result in the
destruction
of the plaintiff’s case. In Van Diggelen v. De
Bruin and Another,
1954 (1) S.A. 188
(S.W.A.), it was held that an
excessive claim did not in any way embarrass the purchasers in
pleading thereto and was not a ground
for exception. On page 195 A-E
Claassen J explained it in the following manner:
“It follows, therefore in my
opinion that if through a breach of contract the seller has suffered
damage, the breach not being
a delict (Isaacman v. Miller,
1922 T.P.D
56
at p62), each co-purchaser is liable to compensate the seller only
for a pro rata share of the loss. If the declaration were otherwise
good it would mean that although each defendant is sued for £6,538
10s he is in fact and in law only liable for half that
amount. Should
a defendant except in such circumstances? If the matter were left to
be dealt with at the trial, there would be
no basis for leading
evidence to support joint and several liability. Evidence so tendered
could be successfully objected to (Philip
v. Metropolitan and
Suburban Railway Co.,
10 S.C 52).
It seems to me that where a
plaintiff claims more money than he is entitled to on the law and the
facts, the excess will simply
be disallowed at the trial……It
is clear that such an excessive claim does not in any way embarrass
the defendants
in pleading thereto. Having pleaded the point can be
left to be dealt with at the trial (see Hirsch Loubscher & Co.
Ltd. v.
Jacobson & Goldberg,
1915 C.P.D 452
at p. 456).
[16] In Nel and Others NNO v Mc Arthur
and Others
2003 (4) SA 142
(T) Basson J stated that, in order for an
exception to succeed, it must be excipiable on every interpretation
that can reasonably
attached to it. An exception cannot be taken to
particulars of claim on the ground that the particulars do not
support one of several
claims arising out of one cause of action. See
Dharumpal Transport (Pty) Ltd v Dharumpal
1956 (1) SA 700
(A).
[17] The first respondent should have
no difficulty pleading to the alternative claim. The alternative
claim is merely a plus petitio
and an exception is not proper. The
first exception cannot succeed.
THE SECOND, THIRD AND FOURTH EXCEPTION
[18] The excipient’s second,
third and fourth complaints pertain to the failure of the plaintiffs
to state the dates and the
manner in which he failed to maintain the
immovable property and investments, and the withdrawal of the capital
amounts from the
Trust. The excipient alleges that the plaintiffs’
particulars of claim are vague and embarrassing as it lacks
particularity.
[19] It is trite that the pleading must
be read as a whole and one paragraph should not be read in isolation
in deciding whether
a pleading is vague and embarrassing. The
vagueness must strike at the root of the matter to cause such
prejudice that the defendant
cannot be expected to plead. The
exception on the allegations of being vague and embarrassing is
intended to cover the case where,
although a cause of action appears
in the summons there is some defect or incompleteness in the manner
in which it is set out,
which results in embarrassment to the
defendant. It strikes at the formulation of the cause of action and
not its legal validity.
[20] In each case the Court is obliged
first of all to consider whether the pleading does lack particularity
to an extent amounting
to vagueness. Where a statement is vague it is
either meaningless or capable of more than one meaning. To put it at
its simplest:
the reader must be unable to distill from the statement
a clear, single meaning. See Venter and Others NNO v Barritt; Venter
and
Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd
2008 (4) SA
639
(C). Secondly the excipient has to show vagueness amounting to
embarrassment and embarrassment amounting to prejudice. The complaint
cannot be directed at a particular paragraph within a cause of action
but has to go to the whole cause of action. In South African
Railways
and Harbours v Deal Enterprises (Pty) Ltd 1975(3) SA 944(W) at 947
Botha J stated:
“ No hard and fast rules can be
laid down as to the degree of particularity that is required; the
Court exercises its discretion
upon the facts of each case; and the
decision in one case is no safe guide to the solution of another
unless the relevant facts
are identical”
[21] It is trite that the plaintiff is
not required to set out facta probantia but only has to allege facta
probanda at this stage.
The first defendant’s failed to satisfy
this Court that without further particulars he would be embarrassed
in his pleading.
I am satisfied that the first defendant would be
able to plead to the averments made and to obtain further
particularity by means
of a request for further particulars for
trial.
[22] I am satisfied that the first
defendant is no manner prejudiced in pleading to the particulars of
claim and he should not have
any difficulty in pleading to it. The
second to fourth exceptions can therefore not succeed.
[23] In the result the following order
is made:
1. The exceptions to the plaintiff’s
particulars of claim are dismissed with costs.
2. The first defendant is given 20 days
from date of judgment to deliver its plea.
L WINDELL
JUDGE OF THE HIGH COURT
Counsel for the Excipient :Adv N.
Lombaard
Counsel for the Plaintiff : Adv AC
Botha
Date of hearing 29 July 2015
Date of judgment 31 July 2015