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NOT REPORTABLE

SOUTH GAUTENG HIGH COURT

(JOHANNESBURG)

CASE NO :2012/9803

DATE:17/09/2012

In the matter between

JACOBUS RUDOLF VAN DER BERG.........................................FIRST PLAINTIFF

MARIA MAGDAGLEN VAN DER BERG …..................................SECOND PLAINTIFF

and

GYSBERT CHARMES VAN DER MERWE..................................FIRST DEFENDANT

GLYNNIS LYN VAN DER MERWE................................................SECOND DEFENDANT

TOPAZ LAKE 39 CC.........................................................................THIRD DEFENDANT

Practice - Exception-Plaintiffs’ particulars of claim - mis-joinder of third defendant - claim against other defendants contradictory to acknowledgement relied on - particulars of claim vague and embarrassing - exception upheld.

J U D G M E N T

VAN OOSTEN J:

[1] This is an exception noted by the defendants against the plaintiffs’ particulars of claim.

[2] The first ground of exception concerns the joinder of the second and third defendants to the action. The second defendant has been joined on the basis that she is married to the first defendant in community of property and that she accordingly has an interest in the outcome of the action. Although this has not been specifically stated in the particulars of claim, the defendants conceded the second defendant’s interest in the action, which effectively disposes of this ground. The joinder of the third defendant as a party to the action however, stands on a different footing: in view of the judgment that has already been obtained against the third defendant, which is referred to below, no cause of action has been made out against the third defendant nor has its interest in the action been alleged or shown. It follows that the objection as to the third defendant’s mis-joinder must be upheld.

[3] Before I deal with the remaining grounds of the exception it is convenient to briefly refer to the plaintiffs’ cause of action as pleaded in the particulars of claim. During 2008 the first plaintiff and the third defendant (Topaz), duly represented by the first defendant, concluded a written agreement in terms of which a business known as Ice Runner was sold to Topaz for the purchase price of R400 000-00 (the agreement). Topaz paid only R30 000-00 in reduction of the purchase price, thereby leaving a balance of
R370 000-00. The plaintiffs subsequently instituted action in the Alberton Magistrate’s court against Topaz in which they, in essence, claimed an order nullifying the agreement, alternatively, payment of the sum of R370 000-00. The defendants defended the action but failed to deliver a plea. On 22 September 2010 judgment by default against Topaz was sought and granted in terms of which the agreement was declared null and void, the business was to be restored to the plaintiffs and 50% of the profit of the business derived during the period of its possession thereof was to be paid to the plaintiffs, together with the costs of the action. Then followed the contentious document, on which the plaintiffs’ claim in this action is based: it is an “acknowledgement” dated 31 March 2011, addressed to the plaintiffs’ then attorneys of record, on their letter head, signed by the first defendant, the body of which reads as follows:

“1. Ek erken aanspreeklikheid in my persoonlike hoedanigheid vir die skulde van Topaz Lake 39.

2. Ek aanvaar vrywilliglik aanspreeklikheid van die vonnis verkry op 22 September 2010 soos hierby aangeheg en onderteken deur my ter bevestiging hiervan.

3. Ek gee vrywillig en onvoorwaardelik toestemming tot die uitvoering van die lasbrief tot eksekusie gedateer 30 November 2010 soos hierby aangeheg en onderteken deur my ter bevestiging daarvan.

4. Ek vrywilliglik gee toestemming tot die beslaglegging van alle bates op my perseel, waarvan eksekusieverkoping oorgehou sal word en ‘n tydperk van 14 dae aan my gegun sal word ten einde die vonisskuld van R370 000,00 ingesluit rente betaalbaar bereken vanaf 22 September 2010 asook alle reskostes te kan betaal.

5. Ek bevestig dat hierdie onderneming vrywillig deur my onderteken is en was nie onbehoorlik beïnvloed tot die ondertekening van hierdie onderneming.”

The plaintiffs in conclusion plead that the defendants, notwithstanding due demand, have “refused, failed or neglected to pay the sum of R370 000-00 which amount is due, owing and payable”. The plaintiffs’ claim accordingly is for payment of the sum of R370 000-00, interest at the mora rate from 22 September 2010 and costs of suit.

[4] The exception to the cause of action consists of two grounds. The first is that it is in conflict with the order granted in the Magistrate’s court, declaring the agreement null and void and ordering restoration as opposed to payment of the balance of the purchase price. The second ground is that the reference to and acknowledgement of the “vonnisskuld” is inconsistent and irreconcilable with the judgment of the Magistrate’s court. In my view the contentions are unassailable: the acknowledgement indeed is contradictory in its terms: although the intention in paragraph 1 thereof appears to be an acknowledgement of the debts of Topaz, the remainder of the terms can only be reconciled with an intention by the first defendant to pay the “vonnisskuld”: final confirmation hereof is his signature having been appended as that of the “vonnisskuldenaar”. The fact of the matter is that there was no “vonnisskuld” of R370 000-00. The first defendant accordingly ex facie the document acknowledged and agreed to pay a non-existent debt. These inconsistencies, in my view, render the particulars if claim vague and embarrassing and it follows that the exception must be upheld.

[5] In the result the following order is made:

1. The exception relating to the mis-joinder of the third defendant is upheld.

2. The exception to the plaintiffs’ particulars of claim is upheld.

3. The plaintiffs’ particulars of claim are set aside.

4. The plaintiffs are granted leave to amend their particulars of claim within 15 days of the date of this order.

5. The plaintiffs are ordered to pay the costs of the exception.

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FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR PLAINTIFFS: ADV (MS) L DE WET

PLAINTIFFS’ ATTORNEYS: MATSEMELA & BEZUIDENHOUT

COUNSEL FOR DEFENDANTS : ADV PA WILKENS

DEFENDANT’S ATTORNEYS: JEAN KOTZE ATT

DATE OF HEARING: 14 SEPTEMBER 2012

DATE OF JUDGMENT : 17 SEPTEMBER 2012

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