About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 112
|
|
Haasbroek v Annene Rebb t/a Rebb Attorneys and Others (16720/2022) [2023] ZAFSHC 112 (19 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
1672/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
JOHANNES
BERNARDUS HAASBROEK
Plaintiff
and
ANNENE
REBB t/a REBB ATTORNEYS
First Defendant
K2021604133
Second
Defendant
BARRY
SPIES
Third
Defendant
JOHAN
CAREL FOUCHé
Fourth
Defendant/Excipient
HEARD
ON:
14 APRIL
2023
JUDGEMENT
BY:
P R CRONJÉ, AJ
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 13h00on 19 April 2023
[1]
After I considered the papers, and after hearing Mr Louw for the
Plaintiff, I granted an
ex tempore
order dismissing the
exception of the Fourth Defendant (Excipient) with costs. I indicated
that my full reasons would follow. This
judgement contains the full
reasons.
[2]
The Fourth Defendant filed and served his Notice of Exception on or
about 22 August 2022. The Plaintiff took
no steps to address his
complaints and the Fourth Defendant thereafter on or about 26
September 2022, filed and served an Exception.
His attorneys of
record, Van Wyk Attorneys, withdrew by filing a notice to this effect
on 17 January 2023. The Fourth Defendant
did not take any steps to
prosecute the exception and the Plaintiff thereafter enrolled it for
14 April 2023.
[3]
The Notice of set down of the exception was properly served on the
Fourth Defendant by the Sheriff on 15 March
2023. The return of
service carries the heading “
In the Regional Court for the
Regional Division of the Free State
”. I requested an
undertaking, which was given by the attorney of record of the
Plaintiff, that the return would be improved
to state the correct
citation of this Court. The notice of set down, however, makes it
clear that it is the Free State High Court
and the Fourth Defendant
can have no doubt as he entered appearance to defend and also served
an exception in this Court.
[4]
When the matter came before me on 14 April 2022, there was no
appearance for the Fourth Defendant. I directed
that his name be
called to ascertain whether he is present, which was done four times.
He did not indicate his presence. I continued
to hear the matter.
[5]
The Plaintiff instituted action against the Defendants for payment of
R1 925 875.00, interest and
costs. Plaintiff’s causes
of action against the respective Defendants arose from a sale
agreement concluded between the Second
Defendant and the Plaintiff in
terms of which the Second Defendant claimed to be the registered
owner of the Farm known as 108
Welbedacht, Reg Div BFN RD and Portion
2, Farm 18 Meriba, Reg Div Brandfort RD, which transaction was
concluded at Bloemfontein
on 13 September 2021.
[6]
The Plaintiff alleges that the Second and Fourth Defendants
fraudulently represented to the Plaintiff that
the Second Defendant
was the registered owner of the respective farms and was entitled to
sell the farms, that they could conclude
a deed of alienation in
respect of the farms with the Plaintiff and that the Second Defendant
could lawfully pass transfer of the
respective farms and register
them in the name of the Plaintiff.
[7]
It is furthermore alleged that the Second and Fourth Defendants made
the misrepresentations whilst being aware
that they were false in
that the Second Defendant could not sell the farms, that the Second
Defendant could not validly conclude
a deed of alienation and that
the Second Defendant could not validly pass transfer of the farms in
the name of the Plaintiff.
[8]
The Plaintiff alleges that it was on reasonable belief that the
representations aforesaid were true, that
a deed of alienation was
concluded. The Fourth Defendant held himself out to be – or
represented to the Plaintiff through
the Third Defendant (estate
agent) that he was the shareholder and/or director and/or
representative of the Second Defendant and
the controlling mind of
the Second Defendant and that he was authorised to represent the
Second Defendant in concluding the deed
of alienation. The Plaintiff
further alleges that Second and Fourth Defendants knew that the
statements and/or representations
were false in that the Second
Defendant was neither the owner of the properties, nor could it
conclude a deed of alienation in
respect thereof.
[9]
In his Notice of Exception against the Plaintiff’s particulars
of claim the Fourth Defendant states
that it does not disclose a
cause of action and is vague and embarrassing. The exception is
against paragraphs 3.2.1, 3.3.1 read
with paragraph 3.4, paragraph
3.2.5 and paragraph 6.2 of the particulars of claim. The paragraphs
read as follows:
“
3.2.
Second Defendant:
3.2.1
Through Third – and Fourth Defendants, represented to Plaintiff
that it was the registered owner of
Welbedacht and Meriba and that it
was entitled to sell the properties to the Plaintiff;
3.2.5
Had a duty to instruct First Defendant to repay to the Plaintiff, any
deposit which it might have paid into
the trust account of First
Defendant in respect of the ‘purchase’ of Welbedacht and
Meriba;
3.3
Fourth Defendant:
3.3.1
Held himself out to be – or represented to the Plaintiff,
through the Third Defendant, that he was
the shareholder and/or
director and/or representative of Second Defendant and the
controlling mind of the Second Defendant, and
that he was authorized
to represent the Second Defendant in concluding a Deed of Alienation
with the Plaintiff, in terms whereof
Welbedacht and Meriba was sold
to the Plaintiff and the Second Defendant undertook to pass transfer
of the properties to the Plaintiff;
3.4
Second – and Fourth Defendants knew that the statements and/or
representations made
by them as aforesaid in paragraphs 3.2.1, 3.3.1
and 3.3.2 supra were false in that Second Defendant was neither the
owner of the
properties, nor could it conclude a Deed of Alienation
in respect thereof and it could not pass transfer of the property so
that
it be registered in the name of the Plaintiff;
6.2
The offer was accepted – and signed by J.C. Fouché
(“Johan Fouché”)
on behalf of the Seller, at
Bloemfontein on 13 September 2021.
”
[10]
In paragraph 5 the Fourth Defendant states that it is evident from
the particulars of claim, that the written offer to
purchase was
entered into with the Second Defendant, who was represented by the
Fourth Defendant in his capacity as shareholder,
director and/or
representative. He continues to state that it is evident from the
particulars of claim that the Second Defendant
is the alleged owner
of the property and he then concludes that the Plaintiff does not
disclose a cause of action in respect of
the claims against him.
[11]
The Fourth Defendant further states that it is evident from the Deed
of Sale that it does not disclose the place of the
signing thereof
and that paragraph 6.2 of the particulars of claim is therefore vague
and embarrassing to such extent that he cannot
plead thereto as the
particulars of claims stand. I pause to state that the document shows
that the Plaintiff signed at Bloemfontein.
[12]
The Plaintiff was afforded fifteen (15) days to address the
Exception, which the Plaintiff did not do. The Fourth Defendant
thereafter served his Exception on the Plaintiff on 26 September 2022
but took no further steps.
[13]
Mr Louw filed comprehensive heads of argument and referred to
applicable case law. He submitted that the Fourth Defendant,
in
failing to enrol the exception, wastes the Court’s time and
that it is clear from the particulars of claim that there
was a
fraudulent misrepresentation by the Fourth Defendant acting in his
capacity as representative of the Second Defendant.
[14]
In
Vermeulen
v Goose Valley Investments (Pty) Ltd
[1]
Marais JA stated:
“
[7]
It is trite law that an exception that a cause of action is
not disclosed by a pleading cannot succeed unless it be shown
that ex
facie the allegations made by a plaintiff and any document upon
which his or her cause of action may be based,
the claim is (not
may be) bad in law
“
[15]
In Stols v Garlicke & Bousfield Inc and Others
[2]
it was held that the Court should take the allegations that are
pleaded as true:
“
10.
The approach to exceptions which claim that the impugned pleading
does not sustain a cause of action is well established.
The court is
to take as true the allegations pleaded by the respondent and to
assess whether they disclose a cause of action. A
cause of
action, in the case of a plaintiff, comprises:
‘…
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of
the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved.’
”
[16]
The Court should endeavour to look benevolently at the pleadings. In
[M] [L] v The
MEC
for Heath, Gauteng
[3]
, it was
held:
“
[7]
It is trite that a court should endeavour to look benevolently
instead of overcritically at a pleading, and it must be
looked at as
a whole. If there is any uncertainty in regard to a pleader's
intention an excipient cannot avail himself thereof
unless he shows
that upon any construction of the pleadings the claim is excipiable.
In that regard see: Amalgamated Footwear &
Leather Industries
Jordan & Co Ltd .”
[17]
Mr Louw submitted that the doors of the Court would not be closed to
the Fourth Defendant as he may still request further
particulars and
utilize other processes as provided for in the Rules of Court. He
therefore requested that the Exception be dismissed
with costs.
[18]
A Court should have regard to the papers as a whole and the test on
exception is whether on all possible readings of
the facts no cause
of action may be made out. It is for the excipient to satisfy the
court that the conclusion of law for which
the plaintiff contends
cannot be supported on every interpretation that can be put upon the
facts.
[4]
[19]
I am satisfied that on a reading of the particulars of claim as a
whole, and also the paragraphs that the Fourth Defendant
complains
about, a cause of action was pleaded and that the particulars of
claim are not vague and embarrassing.
[20]
On this basis, the Exception was dismissed with costs.
P R
CRONJÉ, AJ
Counsel
for Plaintiff: Adv
M Louw
Attorneys
for Plaintiff: Hill
McHardy Herbst Inc.
Bloemfontein
Appearance
for the Fourth Defendant: None
[1]
(121/99)
[2001] ZASCA 53; [2001] 3 All SA 350 (A) (29 March 2001)
[2]
(10146/2010, 10142/10, 10144/2010, 10145/2010, 10186/2010, 858/2011,
1340/2011) [2011] ZAKZPHC 54;
2012 (4) SA 415
(KZP) (22 December
2011)
[3]
C
ase
No
.
37420/2013, 22 July 2021
[4]
Trustees for the Time Being of the Children’s Resource Centre
Trust and Others v Pioneer Food (Pty) Ltd and Others
[2012] ZASCA
182
;
2013 (2) SA 213
(SCA) at para
[36]
; H v Fetal Assessment Centre
[2014] ZACC 34
at para
[10]