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[2019] ZAGPJHC 532
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Valostar 259 CC v Pienaar and Others (24197/2019) [2019] ZAGPJHC 532 (13 December 2019)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 24197/2019
In
the matter between:
VALOSTAR
259
CC
Plaintiff/
Respondent
and
PIENAAR,
GERARD
First
Defendant/ Excipient
PIENAAR,
PRICILLA
Second
Defendant/ Excipient
REGISTRAR
OF
DEEDS
Third
Defendant
JOHANNEBSURG
JUDGMENT
DIPPENAAR
J
:
[1]
The defendants (“the excipients”)
except against the particulars of claim by raising five separate
grounds on which
it is alleged that the particulars of claim lack
averments to sustain a valid cause of action. These grounds are: (1)
lack of
locus standi
;
(2) a failure to quantify the claim pertaining to the costs required
to construct a right of way; (3) as a servitude is normally
created
by an agreement, such agreement is not properly pleaded; (4) a
failure to quantify its claim for the costs required to
construct a
temporary right of way; and (5) insufficient averments are pleaded to
sustain plaintiff’s alternative cause of
action based on a
via
necessitas
.
[2]
It
is common cause that the excipients did not deliver any notice in
terms of R23(1) prior to delivering their exception. In the
circumstances, the excipients cannot rely on grounds that the
particulars of claim are vague and embarrassing
[1]
.
[3]
During argument, counsel for the excipients
conceded that two of the grounds of exception were based on the
grounds that the particulars
of claim were vague and embarrassing
rather than that they did not disclose a cause of action. It follows
that the exceptions taken
on the ground that the particulars of claim
do not set out plaintiff’s claim in such a manner as to enable
the excipients
reasonably to assess the quantum thereof must fail.
This disposes of the second and fourth grounds of exception.
[4]
It
is trite that for purposes of an exception, the averments in the
particulars of claim are accepted as true
[2]
in order to determine whether even with such admission, the pleading
does not disclose a cause of action.
[5]
An
excipient has the duty to persuade a court that the pleading is
excipiable on every interpretation that can reasonably be attached
to
it.
[3]
An exception implies that
the pleading objected to, taken as it stands, is legally invalid for
its purpose
[4]
.
Ad lack of locus standi
[6]
I
accept in favour of the excipients that whilst normally raised as a
special plea, our courts have accepted that a lack of locus
standi
can be raised by way of exception in appropriate circumstances where
this appears from the summons.
[5]
[7]
The excipients contend that the plaintiff
has not shown itself to be the owner of the property alternatively it
does not appear
where it derives its locus standi from. They point
out that the averments in the particulars of claim are contradictory
to the
contents of the agreement attached thereto.
[8]
The plaintiff pleads that it entered into
an agreement of sale for the purchase of certain immovable property.
A copy of an agreement
is attached. It is not averred in the
particulars of claim whether the plaintiff concluded the agreement as
seller or purchaser.
The agreement attached to the particulars of
claim reflects the plaintiff as seller.
[9]
The plaintiff further pleads that “
transfer
has taken place and the plaintiff is now the registered owner of Erf
[…]3
”. For purposes of the
exception, the latter averment must be taken as true. As owner of the
property, the plaintiff would
have the necessary locus standi.
[10]
Any discrepancy between the averments in
the particulars of claim and the agreement may well found an
exception that the particulars
of claim are vague and embarrassing in
this respect. No such exception was taken. It is also open to
the plaintiff to clarify
this issue in evidence.
[11]
It follows that this ground of exception
must fail.
Ad unregistered praedial
servitude
[12]
In its particulars of claim, the plaintiff
seeks a declaratory order that”
there
exists a servitude of a right of way over erf […]4 in favour
of Erven […]3 and […]3/1
”.
[13]
The relevant portions of the particulars of
claim aver that:
“
17.
At the time when Erf […]3 was subdivided provision for access
to both Erven […]3 and […]3/1 was made by
way of a five
meter right of way over the centre of Erf […]4.
18 The right of way as
aforesaid is an unregistered servitude, which was approved for
registration by the relevant municipality
during or about 2007;
19
The right of way was utilised by the
erstwhile owners of Erf […]3;
20 The first and
second defendants had knowledge of the existence of the servitude of
the right of way over the centre of Erf […]4;
21 Accordingly,
the first and second defendants are bound by the unregistered
praedial servitude, and are obligated to give
effect to it;
22 Despite knowledge
of the unregistered praedial servitude, the frist and second
defendants elected to destroy the right of way;
23 The destruction of
the right of way was unlawful, and as a result the first and second
defendants are required to restore the
right of way to its state
prior to destruction”
[14]
The excipients point out that a praedial
servitude is created by state grant, statute, prescription or usually
by a written agreement,
which creates a personal right until
registration.
[15]
The excipients complain that the
particulars of claim are silent on the existence of any agreement,
the terms thereof, the parties
to such agreement, the extent of the
servitude right and its duration. It is contended that absent any
agreement pleaded, no reliance
can be placed on the existence of an
unregistered praedial servitude. It is argued that essential
facta
probanda
are absent from the
particulars of claim.
[16]
I
do not agree. The plaintiff’s cause of action as pleaded is
based on the requirements set out in Grant and Another v Stonestreet
and Others
[6]
. The existence of
the servitude is pleaded as a fact. If that fact is in dispute,
evidence may be required to prove such fact,
including how such
servitude came into existence. That however constitutes part of the
facta
probantia
,
rather than the
facta
probanda
,
as contended by the excipients.
[17]
It follows that this ground of exception
must fail.
Ad alternative claim: via
necessitas
[18]
In the alternative, the plaintiff claims a
declaratory order that “
the
plaintiff is entitled to a servitude of a right of way over Erf
[…]3/1 in favour of Erf […]3”.
[19]
The plaintiff pleads that no compensation
is payable to the excipients as the servitude already exists.
[20]
The excipients complain that this averment
does not hold true as no servitude exists and the via necessitas is
sought over Erf […]3/1
and no servitude is registered over
portion Erf […]3/1/.
[21]
Reliance
is further placed on
Van
Rensburg v Coetzee
[7]
to contend that the particulars of claim must allege the particular
necessity as well as the reason why the way of necessity must
traverse the excipient’s land. It must also state the width of
the road claimed and the grounds upon which that claim are
founded. A
particular route should be indicated for a court’s
consideration as being suitable. In addition, a particular
amount as
compensation should be offered for the court’s consideration
together with a tender for payment of the costs of
registration.
[22]
It is common cause that none of these
averments are pleaded. In my view, there is merit in the exception.
Van Rensburg v Coetzee
particularises the necessary averments which must be pleaded to
sustain the plaintiff’s alternative cause of action.
[23]
It follows that this ground of exception
must succeed.
[24]
The normal rule is that costs follow the
result. The excipients have been at least partially successful with
the grounds of exception
raised, whereas the plaintiff has been
partially successful in its opposition to the exception. It would be
a just exercise of
the discretion afforded to me that the costs of
the exception be costs in the action.
[25]
I grant the following order.
[1] The fifth ground of
exception is upheld and the plaintiff’s particulars of claim
insofar as it relates to its alternative
claim is struck out;
[2] The remainder of the
exception is dismissed;
[3] The plaintiff is
granted leave to amend its particulars of claim within 15 days of
date of this order;
[4]
The costs of the exception are to be costs in the cause in the
action.
_____________________________________
EF
DIPPENAAR
JUDGE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
: 26 November 2019
DATE
OF JUDGMENT
: 13 December 2019
PLAINTIFF’S
COUNSEL
: Adv. R Bhima
PLAINTIFF’S
ATTORNEYS
: Swanepoel Van Zyl Attorneys
DEFENDENT’S
COUNSEL
: Adv. PI Oosthuizen
DEFENDENT’S
ATTORNEYS
: Truter, Crous, Wiggil & Vos Attorneys
[1]
NKP
Kunsmisverspreiders (Edms) Bpk v Sentrale Kunsmis Korporasie (Edms)
Bpk 1973 (2) SA 680 (T) 688D
[2]
Trustees,
Two Oceans Aquarium Trust v Kantey & Templaer (Pty) Ltd
2006 (3)
SA 138
(SCA) 143I-J
[3]
Stewart
v Botha
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) 313E-F
[4]
Salzmann
v Holmes 1914 AD 152
[5]
See
Erasmus Superior Court Practice Vol 2 service 7, 2018, D1-305 and
the authorities cited in fn5
[6]
1968
(4) SA 1 (A) 20 A
[7]
Van
Rensburg v Coetzee
1979 (4) SA 655
(A)