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
>>
2017
>>
[2017] ZAFSHC 117
|
|
Mkhutsane and Others v Pule and Others (2477/2016) [2017] ZAFSHC 117 (6 July 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2477/2016
In
the matter between:
LINGIWE
MARRIAM
MKHUTSANE
1
st
Plaintiff
LERATO
WINFRED
MKHUTSANE
2
nd
Plaintiff
PALESA
LUCIA
MKHUTSANE
3
rd
Plaintiff
PULE
GIDFREY
MOLELEKOA
4
th
Plaintiff
LEHLOHONOLO
CAVIN MOLELEKOA
5
th
Plaintiff
and
BAILE
DORRIS PULE
1
st
Defendant
MORAMANG
FREDDY MOLELEKOA
2
nd
Defendant
MANGAUNG
METROPOLITAN MUNICIPALITY
3
rd
Defendant
REGISTRAR
OF DEEDS (FREE STATE)
4
th
Defendant
MASTER
OF HIGH
COURT
5
th
Defendant
HEARD
ON:
31 MARCH 2017
JUDGMENT
BY:
RAMPAI,
J
DELIVERED
ON:
6
JULY 2017
[1]
The matter came to court by way of action proceedings. The
plaintiffs seek the relief in the form of deregistration of
a
transfer of a residential property by the first to the second
defendant. The residual relief sought is to have such property
registered in the names of the 5 plaintiffs. The action is
defended.
[2]
Only the first defendant filed the requisite notice of her intention
to defend the action. Such notice was duly served
and filed.
[3]
The first defendant took an exception to the plaintiffs’
summons. Her notice in terms of Rule 23(1) was duly served
and
filed. Notwithstanding service, the plaintiff took no steps to
remove the causes of the first defendant’s complaint.
[4]
The exception was enrolled for hearing on Friday 24 February 2017.
I was seized with the matter. By agreement between
the parties,
the matter was postponed to 31 March 2017. The costs relative
to the postponement were reserved. On 31
March 2017 I heard the
first defendant’s application to set the summons aside.
[5]
The first defendant’s complaint was threefold. The first
cause of the complaint was that the particulars of claim
disclosed no
cause of action. The contention was that they substantially
lacked material averments necessary to sustain an
action.
[6]
The second cause of the complaint was that, although the plaintiffs’
prayed for a statutory relief in terms of section
6 Deeds Registries
Act 47/1937, they however, neglected to plead the facts entitling
them to rely on the section.
[7]
The third cause of the complaint was that the particulars of claim
were vague and embarrassing.
[8]
As regards the third complaint, its source was par 5.1 of the
particulars of claim. It reads:
“
Plaintiffs (sic)
are the descendants and/or grandchildren of the late Nozenza Winfred
Molelekoa who died intestate on 25 November
2086 as shown by the
death certificate attached hereto as Annexure AA.”
[9]
The first ground of this particular cause of the complainant
concerned the date. The alleged date has not yet come to
pass.
It is a future date. The difference between the alleged year of
death and the year these proceedings were instituted
is 70 years.
To that extent, par 5.1 was inconsistent with the annexure relied
upon. This was the second ground of
the cause of the complaint.
[10]
The following comment is apposite:
“
Also the dates of
death of all deceased parties are significant to establish whether
the line of succession in the property will
be direct from Thomas and
Ronald to Convent and Maggie’s children or their estates.”
v
ide
7 of the Master’s Report filed on 30 September 2016.
[11]
I am persuade that the first defendant is embarrassed by the two
inconsistent dates which render that entire paragraph vague.
The par is capable of more than one meaning. The one, which is
probably correct, is that the grandmother of the plaintiffs
is no
longer alive. The other, which is probably incorrect, is that
she is still alive. This may sound unconvincing
but the rule is
clear, the defendant has the right to know the precise case she has
to meet. She must not be expect to guess
the case against her.
[12]
If 2086 is palpably wrong as the plaintiff contended, there was no
sound reason why the plaintiffs neglected to correct the
error in
order to remove the cause of the first defendant’s complain.
The refusal or neglect to remove it, implicitly
cast some uncertainty
as to the correctness of the other date, 25 August 1985, as stated in
“anx aa”. That document
is obviously in conflict
with the averment it was intended to support.
[13]
It would have caused the plaintiffs far less expense and
inconvenience to remove the third and indefensible cause of the first
defendant’s complaint – than trying to defend the
indefensible cause. The correct date of the grandmother is
significant to establish the correct line of succession, as the
master correctly remarked.
[14]
I am of the view that the plaintiffs’ pleading lacked the
exactness to the extent that it was embarrassing and vague.
The
first defendant will, therefore, be seriously prejudiced if the
offending allegations in par 5.1 are not expunged –
Erasmus:
Superior Court Practice
,
B1-154. See also
Net
and Others NNO v McArthur and Others
2003 (4) SA 142
(T) at 147A-B
.
Failure to plead a significant date correctly is potentially
prejudicial. This is a material consideration.
[15]
Consequently, I am inclined to uphold the first defendant’s
objection on this third ground alone.
[16]
As regards the second and the first grounds of the objection, I deem
it superfluous to deal with any of them at length.
The
conclusion I have reached in respect of the third ground makes it
unnecessary to do so. Nonetheless, I have considered
those
remaining grounds. As far as they are concerned, I am also
satisfied that the objection has substance.
[17]
Now there remains the question of costs. The first defendant’s
objection deserves to be upheld. The matter
did not proceed on
24 February 2017 because the plaintiff’s attorney was not
available. He gave an acceptable explanation.
That being
the case, I make no order as far as those reserved costs are
concerned.
[18]
Accordingly I make the following order
(a) The first
defendant’s objection in terms of Rule 23(1) is upheld;
(b) The summons and
the particulars of claim are set aside;
(c) The
plaintiffs are directed to pay the costs, jointly and severally, the
one paying, the others to be absolved.
_____________
MH
RAMPAI, J
On
behalf of plaintiff:
Attorney M Khang
Instructed
by:
Mphafi Khang Inc
Bloemfontein
On
behalf of defendant: Adv PC
Ploos van Amstel
Instructed
by:
Pieter Skein Attorneys
Bloemfontein