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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Reportable / Not reportable
CASE NO: 17699/2018
In the matter between:
WAYNE BENGSTON First Applicant / First Defendant
WAYNE BENGSTON N.O Second Applicant / Second Defendant
DONALD BENGSTON N.O Third Applicant / Third Defendant
(Second and Third Defendants in their capacity
as the duly appointed Trustees of the Five B
Trust Master’s Ref: I[...])
CASADOBE PROPS 1 (PTY) LTD Fourth Applicant / Fourth Defendant
(Registration: 2002/026066/07)
and
DEON WAYNE PREUSS N.O First Respondent / First Plaintiff
THE TRUSTEES FOR THE TIME BEING Second Respondent / Second
Plaintiff
OF THE DW PREUSS TRUST (I[...])
in re:
In the matter between:
DEON WAYNE PREUSS First Plaintiff
THE TRUSTEES FOR THE TIME BEING OF Second Plaintiff
THE DW PREUSS TRUST (I[...])
and
WAYNE BENGSTON First Defendant
WAYNE BENGSTON N.O Second Defendant
DONALD BENGSTON N.O Third Defendant
(Second and Third Defendants in their capacity
as the duly appointed Trustees of the Five B
Trust Master’s Ref: I[...])
CASADOBE PROPS 1 (PTY) LTD Fourth Defendant
(Registration: 2002/026066/07)
COMPANIES AND INTELLECTUAL PROPERTY Fifth Defendant
COMMISSION
STANDARD BANK OF SA LTD Sixth Defendant
Coram: Honourable Madam Justice Slingers
Heard: 11 September 2025
Delivered: 16 September 2025
ORDER
(a) the point in limine is dismissed;
(b) The exception is upheld;
(c) The defendants are afforded fifteen (15) court days from the handing down of
this order to amend their counterclaim in order that it sustains a cause of action and
is no longer vague and embarrassing;
(d) Should the defendants fail to amend their counterclaim within 15 court days,
as set out in paragraph (ii) above, the counterclaim will be set aside;
(e) The costs of the exception shall be paid for by the first to third defendants
jointly and severally, the one paying to absolve the other.
JUDGMENT
Background
1. The plaintiffs instituted action proceedings against the defendants as a result
of the first defendant allegedly causing the resignation of the first plaintiff , on or
about 8 June 2015 , as a director of the fourth defendant and transferring the shares
held by the DW Preuss Trust in the fourth defendant to the Five B Trust.1
2. On 19 June 2024, the plaintiffs filed their amended declaration . On or about
16 August 2024, the first to fourth respondents (‘the respondents’) filed their plea
together with a counterclaim. On or about 31 October 2024, the plaintiffs excepted
to the respondents’ counterclaim. It is this exception which serves before me.
The exception
11 In this judgment the parties shall be referred to as they are in the main action.
3. The plaintiffs except to the counterclaim on two grounds. The first one is that
the counterclaim failed to disclose a cause of action. The second ground is that the
counterclaim is vague and embarrassing as it fails to set out the necessary
averments establishing locus standi on the part of the respondents.
4. In support of the first ground of exception, the plaintiffs argue that the
defendants are claiming damages from the plaintiffs but do not specify whether or
not the claim is based in delict or in contract. If the counterclaim is based in delict,
then the respondents have failed to allege negligence or wrongfulness on the part of
the plaintiffs. Furthermore, they have failed to allege that the plaintiffs breached a
common law right, statutory duty or duty of care. The counterclaim also omitted to
set out any causal link between the damages suffered by the respondents and the
actionable conduct of the plaintiffs.
5. If the cause of action was based in contract then the counterclaim is deficient
as it does not disclose any of the required averments nece ssary to sustain a cause
of action based on a contractual relationship between the parties.
6. In support of the second ground of exception, the plaintiffs argue that the
defendants’ counterclaim is premised on the alleged loss of two immovable
properties but they fail to set out the facts necessary to establish the ownership of or
a financial interest in the two properties in question.
7. Subsequent to the filing of the exception, the defendants filed a notice of
intention to amend their counterclaim in accordan ce with Rule 28. However, this
amendment was not intended to address the objections raised by the plaintiff but
were of a cosmetic nature. For this reason, the parties agreed that the hearing of the
exception should proceed.
The counterclaim
8. Whilst the defendants contest the authority of the second plaintiff to institute
8. Whilst the defendants contest the authority of the second plaintiff to institute
the proceedings on behalf of The DW Preuss Trust ( I[...]), they do not dispute the
identity of the parties as set out in the amended declaration.
9. Thus, it can be accepted that th e first defendant is an adult male person, that
the second and third defendants are acting in their representative capacity as the
duly appointed trustee s of the Five B Trust ( I[...]) and the fourth defendant is a
private company with limited liabili ty duly incorporated and registered with the
company laws of South Africa.
10. The counterclaim pleads that the contents of the plea be incorporated into the
counterclaim. It pleads further that:
‘7. Subsequent to Plaintiffs obtaining the interdict on 29 Sep tember 2015,
Fourth Defendant’s bank account was unlawfully frozen by Fourth
Defendant’s banker, erroneously acting pursuant to a court order which had
lapsed due to Plaintiffs’ failure to proceed in accordance therewith, leaving the
First to Fourth Defendants in a position of not being able to continue trading.
8. The consequence of the aforementioned was that First to Third Defendants
had to sell assets for less than the actual value in order to keep Fourth
Defendant financially operational, as Fourth Defendant was not in any position
to pay its own debt and/or expenses.
9. In order to do so, First to Third Defendants had to sell two of the
properties under their control and which include the following:
….
…
10….
11. Due to Plaintiffs having failed, to bring the dispute which forms the
subject of the action in convention, and which was based on fraudulent
misrepresentation as set out in paragraphs 10 and 11 (including the sub -
paragraphs thereto) of Plaintiffs Declaration before Court in accordance with
the Court Order dated 29 September 2015, First to Fourth Defendants
suffered damages in that:’2
11. The defendants pray for judgment read as follows:
2 The counterclaim has been quoted as if the proposed amendment had been made, with the
underlining portions reflecting the proposed amendment.
“WHEREFORE Defendant prays for an Order against Plaintiffs in the following
terms:
(a) that judgment be granted against Plaintiffs, the one paying the other to
be absolved;
(b) payment of an amount of R22 332 398,30;
(c) interest on the amount of R22 332 398,30 at the rate of 12.5% from 29
September 2015 until date of settlement;
(d) Further and/or Alternative relief;
(e) Costs of Suit.’
The in limine point
12. In opposing the exception, the defendants took the point in limine that the
exception was not raised within the time period provided for in Rule 23(1) and
therefore, in the absence of seeking condonation, the plaintiffs were ipso facto
barred from bringing the exception.
13. As shown below, the exception is a pleading. When an exception is taken to
a declaration or a combined summons, the plaintiff cannot object to the exception on
the basis that it was delivered out of time in the absence of a notice of bar in terms of
Rule 26.3 Similarly, when an exception is taken to a counterclaim to which a party is
required to plead, the plaintiff in the counterclaim cannot object to the exception on
the basis that it was delivered out of time in the absence of a notice of bar in terms of
Rule 26. In those circumstances where the pleadings have not closed there is no
automatic bar when a party fails to file a pleading within the time period provided for
in the Rules of Court and a notice of bar is required.4
3 Hill NO v Brown WCC 3069/20 (3 July 2020); See also Erasmus Superior Court Practice – RS 26,
2025 D1, Rule 23-22 (Jutustat)
4 Tyulu and Others v Southern Insurance Association Ltd 1974 (3) SA 726 E; see also Landmark
Mthatha (Pty) Ltd v Kings Sabata Dalindyebo Municipality and Others: In Re African Bulk Earthworks
(Pty) Ltd v Landmark Mthatha (Pty) Ltd and Others 2010 (3) SA 81 (ECM)
14. In this matter, the defendants did not place the plaintiffs under bar to plead to
the counterclaim and elected not to file a notice in terms of Rule 26. Consequently,
the defendants cannot object to the filing of the exception outside the time provided.
15. Therefore, there is no merit to the point in limine.
The first ground of exception
16. I turn now to the first ground of exception.
17. In determining the first ground of the exception, the court will accept, as true,
the allegations set out in the counterclaim i n order to assess whether or not it
discloses a cause of action. The exception can only be upheld if, on ever y.
construction thereof it fails to sustain a cause of action.
18. Further, in determining the exception, the court must consider the pleadings
holistically and as a whole.5
19. It is trite that an exception on the ground that the particulars of claim lack the
necessary averments to sustain a cause of action constitutes a pleading. 6 If the
court concludes that irrespective of the facts wh ich may emerge at the trial, that the
particulars of claim are incapable of sustaining a cause of action th en it should
uphold the exception.7
20. Cause of action is every fact necessary for the claimant to prove an
enforceable claim and includes every materi al fact entitling a claimant to their claim.
It includes all that a claimant must set out in the declaration in order to disclose a
cause of action.8
5 Merb (Pty) Ltd v Matthews
6 Alexia Kobusch and Others v Wendy Whitehead (515/2023) [2 -25] ZASCA 24; 2025 (3) SA 403
(SCA) (27.3.2025)
7 Tembani v President of the Republic of South Africa 2023 (1) SA 432 (SCA) at paragraph [16]
8 Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation 2020 (1) SA 327 (CC)
21. The defendants allege in their heads of argument that their counterclaim is
neither based on a delict no r a contract but on the fact that the plaintiffs caused the
defendants harm by fraudulently misrepresenting that the defendants were not
authorized to effect transfer of the plaintiffs’ shares in the fourth defendant to first
and/or second and third defendants.
22. However, a consideration of the counterclaim will show that it is based on the
defendants suffering pure economic loss. Therefore, in accordance with the decision
of the Supreme Court of Appeal in Hlumisa Investment Holdings RF Ltd v
Kirkinis9the defendants had to set out facts on which they allege that the loss had
been wrongfully caused. They did not do so. The defendants state that they
suffered the loss ‘because of Plaintiffs ill -founded interdict’. No facts are set out in
support of the conclusion that the interdict was ill founded.
23. In any event, while the plaintiffs can apply for the interdict, it is the court which
grants it. No facts are set out why the granting of the interdict was wrongful or
erroneous.
24. Furthermore, no causal link between the conduct of the plaintiffs and the loss
suffered is pleaded and/or set out in the counterclaim . Rather, it is the conduct of
the defendants’ bankers which resulted in the action causing the loss.
25. On every possible construction the counterclaim does not address
wrongfulness nor causation and therefore, does not set out the necessary averments
to sustain a cause of action.
The second ground of the exception
26. I turn now to the second ground of the exception.
27. The second ground of exception is that t he counterclaim is vague and
embarrassing.
9 2020 (5) SA 419 (SCA
28. The counterclaim is based on the averments that the first to third defendants
were forced to sell two properties at a price less than their actual value as opposed
to developing them. Consequently, the first to third defendants suffered damages.
The counterclaim ends with a prayer that the defendant prays for judgment against
the plaintiffs for damages in the amount of R22 332 398,30. It does not specify
which defendant. During the hearing of the mat ter, the defendants’ counsel
conceded that this was an error and that it should be defendants , and not defendant.
However, he was unable to state whether it would simply for the first to third
defendants or all four defendants, in light of the fact that n o loss had been averred
on the part of the fourth defendant.
29. Furthermore, and a s correctly argued by the plaintiffs, no distinction is made
between the loss suffered by the first defendant, who is a natural person and the
second and third defendants who represent a trust. The loss averred is simply
lumped together on the assumption that they are entitled collectively to a single
globular amount.
30. In its amended form, the counterclaim is that the property was under the
control of the first to third defend ants. The nature, source and extent of this control
are not set out. The counterclaim does not set out any facts to show that the control
alleged amount to a financial interest and/or ownership which caused the defendants
financial harm when the properties were purportedly sold below their value.
31. In the circumstances, t he plaintiffs are unable to plead to the counterclaim.
As set out in the plaintiffs’ heads of argument:
’27.2 Without this fundamental particularity, the Excipients cannot plead.
They cannot admit that the Trust owned a property while denying that the
individual did. They cannot raise a defence against one claimant (for
example, a contractual limitation of liability) that may not be applicable to the
example, a contractual limitation of liability) that may not be applicable to the
other. This is not a matter t hat can be cured by a request for further
particulars; it strikes at the very root of the formulation of the cause of action.
The entire claim, is premised on a legally incoherent jumbling of different
parties and their distinct potential losses, which is the very definition of a
pleading that I vague and embarrassing, and which causes serious prejudice.’
32. Therefore, the second ground of the exception is also upheld.
Conclusion
33. In the circumstances, I make the following orders:
(i) the point in limine is dismissed;
(ii) the exception is upheld;
(iii) the defendants are afforded fifteen (15) court days from the handing
down of this order to amend their counterclaim in order that it
sustains a cause of action and is no longer vague and embarrassing;
(iv) should the defendan ts fail to amend their counterclaim within 15
court days, as set out in paragraph (ii) above, the counterclaim will
be set aside;
(v) the costs of the exception shall be paid for by the first to third
defendants jointly and severally, the one paying to absolve the other.
_________________________
HM SLINGERS
JUDGE OF THE HIGH COURT
16.09.2025
Appearance
For the Applicants: Mr. Morne Basson
As instructed by: Terblanche Inc.
Johan Victor Attorneys
For the Respondents: Mr. JT Benade
As instructed by: Smith Tabata Buchanan Boyes