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2024
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[2024] ZAECQBHC 66
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K.S-D v R.G.D and Others (637/2024) [2024] ZAECQBHC 66 (8 October 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Not
Reportable
CASE NO: 637/2024
Matters heard on: 19
September 2024
Judgment
delivered on: 08 October 2024
In
the matter between:
K[…]
A[…]
S[…]-D[…]
Plaintiff
and
R[…]
G[…] D[…] & 3 OTHERS
First Defendant
SAN
MICHELLE 304 (PROPRIETARY) LTD
Second Defendant
TESSA
ERASMUS
Third Defendant
DAWN
ERASMUS
Fourth Defendant
JUDGMENT
BRODY
AJ:
[1]
The plaintiff and the first defendant are currently involved in
divorce litigation
in Cape Town and which, this court was advised, is
to be heard in a couple of years.
[2]
In addition to the ongoing divorce proceedings, the plaintiff has
initiated a separate
legal action in this court concerning access to
a beach house located in Cape Saint Francis. This property, which
both parties
previously used as husband and wife, has now become a
point of contention between them.
[3]
The plaintiff instituted action against the first defendant, her
husband, the second
defendant, (a company which owns the beach house)
to have access to, and to “utilise” the beach house.
[4]
The first and second defendants, in terms of rule 23(1) gave notice
to the plaintiff
to remove causes of the complaints of the first and
second defendants. The complaints were that the particulars of claim
were vague
and embarrassing and did not disclose a cause of action.
[5]
When amendments to the particulars of claim were made, the notices of
exception were
duly filed by the first and second defendants.
[6]
Although there are two exceptions, there is a degree of overlap
between them and this
judgment will deal with the exceptions as one
complaint.
[7]
The issues to be decided is whether the particulars of claim are
indeed excipiable,
on one, or more, of the grounds set out in the
exceptions.
[8]
Mr Buchanan SC acted on behalf of the first and second defendants and
Mr Richards
SC acted on behalf of the plaintiff. Mr Richards SC,
however, was not the author of the particulars of claim and this was
made
clear by him when argument commenced.
[9]
It is trite that, generally, allegations pleaded by a party must be
assessed and accepted
in considering whether such allegations
disclose a cause of action.
[1]
[10]
In addition, for the purposes of deciding an exception, based on an
allegation that the particulars
of claim do not disclose a cause of
action, this must be predicated upon any reasonable construction of
the particulars of claim.
[2]
[11]
The relevant principles, when dealing with excipiable pleadings, are
the following:
[11.1] the
pleadings must be formulated in such a manner that a party can
reasonably and fairly be required to plead thereto;
[11.2] the
pleadings must be lucid and logical and in an intelligible form;
[11.3] the cause of
action must appear clearly from the factual allegations made;
[11.4] when an
allegation is made that pleadings are vague and embarrassing, there
is a two-fold consideration. The first
is whether the pleading lacks
particularity to the extent that it is vague. The second is whether
the vagueness causes embarrassment
of such a nature that the
excipient is prejudiced in preparing its defence;
[11.5] any pleading
which leaves a party guessing as to its actual, or true meaning, is
excipiable as being vague and embarrassing;
[11.6] a pleading
is vague and embarrassing if the vagueness and embarrassment strikes
at the route for the cause of action,
as pleaded; and
[11.7] when an
allegation is vague, it is either meaningless or capable of more than
one or other meaning.
[12]
In the particulars of claim the plaintiff purportedly seeks orders
entitling the plaintiff to
have access to, and utilise, the beach
house in circumstances where the owner of the beach house is a body
corporate.
[13]
The particulars of claim, however, allege that it is the first
defendant that has been a director
of the body corporate “at
all material times”.
[14]
The third and fourth defendants, alleged to be major females, are
cited without any particularity
given for their involvement. It is
pleaded that they are “in permanent occupation of the
property”.
[15]
To confuse the matter even further, the particulars of claim in
relation to the third and fourth
defendants, states the following:
“
No relief is
sought herein against the second, third and fourth defendants. Same
are cited by reason of any interest which they
may have in the
outcome of the matter.”
[16]
The main pillar of the particulars of claim is that the cause of
action relies upon an “agreement”.
The particulars plead
further that the agreement constituted a “partly oral and
partly written agreement, alternatively an
oral agreement
(hereinafter referred to as “the use agreement”)”.
[17]
To add to the confusion, at paragraph 15 of the particulars of claim,
it is alleged that the
“use agreement” “comprises
and/or repeats and/or incorporates clause 3.5 of the written
agreement concluded between
the plaintiff and the first defendant on
1 June 2018”. Further it is alleged that the said “agreement”
is attached
as annexure “A”. Then it is pleaded that
“only clause 3.5 of the said agreement and no other clauses
were incorporated
into the use agreement.”
[18]
This paragraph, on its own, gives no clarity as to what part of the
agreement is “oral”,
or written.
[19]
The annexed document to the particulars of claim appears to be a
final binding agreement and
clause 3.5 thereof is not consistent with
the allegations contained in the particulars of claim, nor the relief
sought by the plaintiff.
[20]
The particulars of claim also allege an agreement between the
plaintiff and the first defendant.
The first defendant, however, is
not the owner of the property and no basis is given why the first
defendant can, or does, bind
the company.
[21]
Clause 16 also attempts to suggest how the first defendant, as
director, binds the second defendant,
without giving any factual or
legal basis for this allegation.
[22]
The period of use is also not clear. The pleadings make reference to
“the school holidays”
and that the period is also not
subject to “a limitation of duration”.
[23]
Clause 18 of the particulars of claim allege a repudiation of the
“use agreement”.
Reference is made to a letter annexed as
“B” to the particulars of claim, however, this letter
cannot, on any possible
interpretation, be regarded as a repudiation.
This letter in fact makes reference to earlier correspondence between
the parties
without this being attached as an annexure to the
particulars of claim.
[24]
The relief sought is also vague and embarrassing. Reference is made
to “procure”
access and utilisation, not only to the
plaintiff, but also the “children”. These parties are not
identified.
[25]
The dates given in the relief are also unclear and appear to be
arbitrary. This is on any objective
reading of the relief sought.
[26]
At clause 5 of the prayers, there is reference to relief in the form
of “similar accommodation”.
No legal basis is given for
such relief.
[27]
Mr Buchanan SC, on behalf of the first and second defendants, argued
that the particulars of
claim, as presently pleaded, do not disclose
an enforceable cause of action. In essence, the plaintiff is alleging
a personal servitude
which within the ambit of “any interest in
land” is defined in the Alienation of Land Act 66 of 1981 (“the
Act”).
He further argued that the written portion of the
“agreement” relied upon by the plaintiff does not comply
with, nor
contain, all of the material terms as set out in the Act.
Finally, Mr Buchanan SC argued that the plaintiff essentially
contends
for an executory contract of donation, namely, an agreement
to give something in the future. As the argument goes, such an
agreement
is only valid if its terms are embodied in a written
document signed by the donor, or a person acting on the donor’s
written
authority granted in the presence of two witnesses. The
written portion of the agreement is also lacking in substance and
form.
[28]
His further argument was that the “donation” was not
affected by the “donor”
but purportedly by the first
defendant.
[29]
The final effect of the relief sought by the plaintiff he argued, was
to evict the first defendant
and others, from the property at least
for periods of time when the plaintiff required use of the beach
house.
[30]
Mr Richards SC argued that the plaintiff seeks specific performance
of an agreement between her
and the first defendant to enable the
plaintiff, and the specified children, to have access to and to use
the beach house. He further
argued that the facts, as pleaded by the
plaintiff, do not lead to a conclusion that the first defendant sold,
exchanged or donated
land to the plaintiff. He correctly conceded
that the first defendant was not the owner of the property but argued
that he did
not have to be the owner in order to undertake to share
the occupation of the beach house with the plaintiff and the
children.
[31]
The argument goes, that the plaintiff has pleaded that the first
defendant is in “permanent
occupation” of the beach house
and that this does not prevent him from treating the plaintiff as an
“invited guest”,
where he is the “host”.
[32]
His argument was also that the “agreement” was not a
servitude or a donation in the
strict legal sense. In regard to the
period of use, his argument was that this was confined to “school
holidays” and
was objectively ascertainable.
[33]
I am in agreement with Mr Buchanan SC that the particulars of claim,
as they presently read,
are vague and embarrassing and do not
disclose a cause of action. The mere fact that there is great
difficulty in determining the
nature of “the agreement”
between the parties is proof in itself of the fact that the
“agreement” is vague
and embarrassing.
[34]
There is no clarity as to what portion of the annexures are the
written, or oral, part of the
agreement and there is no annexure
which establishes a “repudiation” of the agreement.
[35]
There can be little doubt that what the plaintiff intends to persuade
the trial court is that:
[35.1] there is a
“binding” agreement between the plaintiff and the first
defendant relating to the beach house;
[35.2] the first
defendant is duly authorised to have reached such an agreement on
behalf of the second defendant;
[35.3] the
plaintiff intends to utilise the beach house for her, and the
“children” during school holidays, (which
may encompass
religious holidays); and
[35.4] the first
defendant has already repudiated this agreement.
[36]
The pleadings, however, do not establish the aforesaid allegations
nor do they establish a legal
basis for such an agreement, in the
absence of compliance with the Act, and the authorities cited above.
[37]
Relief is clearly sought against the first and second defendants and
the rights of the remaining
defendants are, as argued by Mr Buchanan
SC, important, and to be considered.
[38]
I am therefore in agreement with Mr Buchanan SC that the particulars
of claim, as read with the
annexures thereto, are vague and
embarrassing, and do not disclose a cause of action.
[39]
It was also common cause in the matter that if I uphold the
exceptions, that the appropriate
costs order would be on scale C
given the seniority of both counsel, and the complexity of the
matter.
[40]
In argument I put to both counsel that the relief sought by the
plaintiff is the kind of relief
usually sought in divorce action
prayers and can be dealt with in terms of rule 43, and that it was
not in any party’s best
interests to have multiple actions
involving the family.
[41]
I have no doubt that the divorce action in Cape Town already
encompasses broader disputes between
the parties and the initiation
of multiple actions across different courts complicates the legal
process unnecessarily especially
when children are involved.
Fragmented litigation to proceed in different jurisdictions should be
avoided at all costs as this
only seeks to increase legal costs and
prolong the emotional toil on the family.
[42]
The parties should consider having the matters heard in one forum if
the disputes are not settled.
This will streamline the legal
process, reduce conflict, and help the family move towards a more
amicable resolution.
[43]
In the result, it is ordered:
(a)
That the exceptions be upheld with costs, such costs to be on scale
C, in terms of rule
69 (7);
(b)
The plaintiff is afforded ten (10) court days to file an appropriate
notice of intention
to amend.
B.B.
BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Plaintiff
: Adv.
Richards SC
Instructed
by
: Murray
Inc. Attorneys
c/o Joubert Galpin Searle
173 Cape Road
GQEBERHA
(Ref.: Ms C Jonker)
Counsel
for the First Defendant
: Adv.
Buchanan SC
Instructed
by
:
Schoeman Oosthuizen Inc.
167 Cape Road
GQEBERHA
(Ref.: DR JS
OOSTHUIZEN/C02972)
[1]
Living Hands (Pty) Ltd vs Ditz 2013(2) SA 368(G) at 374
[2]
Erasmus Superior Court Practice – Second Edition Volume 2 at
D1 Rule 23-1ff