JUDGMENT
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That company , Elite Visas (Pty) Ltd was in the
business of organising visas for individuals who wished to
travel out of South Africa to other destination s. It ran into
difficulty as a result of the Covid- 19 lockdown. Th e company
could not operate for an extended period, and was not in a
position to fund the expenses arising from the Kempton
Park prope rty. Accordingly, the respondent , Ms Weldhagen,
took it upon herself to put the company in a position to meet
those expenses.
In her particulars of claim , Ms. Weldhagen says that
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she funded expenses to the tune of just over R937 000.
She now seeks to reclaim that amount from the excipient ,
Mr Weldhagen. H er claim to do so is outlined in her
particulars of claim dated 5 May 2023.
Mr Weldhagen now excepts to the particulars of
claim . H e says that they do not disclose a cause of action
for the payment of the amount Ms Weldhagen demands.
The broad outline of the arrangement between the
parties may well on some or other basis yield an obligation
on Mr Weldhagen to pay Ms Weldhagen something -
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perhaps even the full amount claimed in the particulars. The
problem with particulars of claim is that they do not set out
how that obligation arises. The particulars and the fact s
pleaded in them give rise to the possibility o f three different
actions.
JUDGMENT
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The first is that there was a partnership in respect of
the property that survived the dissolution of the marriage,
and that it is on the dissolution of that partnership that Mr
Weldhagen acquires an obligation to pay the sum Ms
Weldhagen claims. The second possibility is that the claim
is for the dissolution of the parties’ co -ownership of the
property, and that it is as a consequence of that dissolution
the amount is owed. And the third possibility , also presaged
in the particulars of claim, is that Mr Weldh agen is
unjustifiably enriched in the amount Ms. Weldhagen claim s.
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I am unable to discern on the face of the particulars
which claim or combination of claims is being pursued. No
partnership agreement has been pleade d - nor is any
obligation under that agreement to make the payments Ms.
Weldhagen claims. In relation to any action to dissolve the
co -ownership arrangement, the basis on which Mr
Weldhagen is liable for the amount claimed is likewise not
pleaded. Finally, in the event that the suggestion is that Mr
Weldhagen has been unduly enriched by Ms. Weldhagen’s
payments, the enrichment action , even in its general form ,
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has not been pleaded.
For all those reasons a cause of action for the
amount claimed in prayer 5 of the particulars has not been
made out. The exception is well -taken. T he appropriate
relief is to uphold the exception in respect of prayer 5 of the
JUDGMENT
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particulars, and afford the plaintiff one month in which to
revis e her particulars of claim .
I now turn to t he question of costs. Mr Lennox , who
appeared for Ms. Weldhagen, asked that costs be costs in
the trial. If this were a particularly closely argued exception
concerning a subtle defect in the particulars, I would agree.
But this is not that kind of exception. The exception taken
was to a glaring absence in the particulars. Instead of
conceding such an absence and revising her particulars
accordingly, Ms. Weldhagen chose to push the matter to a
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hearing.
Accordingly, costs must follow the result. It does not
matter that the relief originally sought was the setting aside
of the particulars completely. As Mr K lo ek who appeared
for the ex cipient accepted , that relief was never competent,
and would have been deflected by a revision of the
particulars and their service on the excipient.
Given the simplicity of this case, I do not accept that
costs on scale B should follow. T his is a case in which
costs on scale A are more than enough.
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For all those reasons, I shall make an order
upholding the excipient’ s exception , directing the costs of
the exception be paid on the party and party scale A, and
granting the plaintiff leave to file amended particulars of
claim within one month from today. A draft on these terms is