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REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 31068 /2012

DATE:22/02/2013

In the matter between:

Pienaar: Julian.................................................................................Excipient/Defendant

and

Gmeiner: Franz N.O. ….................................................................First Respondent/First Plaintiff

Gmeiner: Antoinette Christine N.O............................................Second Respondent/Second Plaintiff

JUDGMENT

Mia AJ:

[1] The excipient takes exception to the first and second respondents’ particulars of claim on two grounds. The first ground concerns the citation of the plaintiffs who act in their capacities as trustees and the description of the landlord. The exception is thus based on the particulars of claim not making out a cause of action and being vague and embarrassing. On the second ground the locus standi of the plaintiffs is questioned and their authority to bring the action. The complaint in this regard is that the particulars of claim fail to disclose a cause of action alternatively is vague and embarrassing. The excipient requests that the exception be upheld and the particulars of claim be set aside together with the costs of the exception.

[2] The excipient takes exception to the description of the plaintiffs in the particulars of claim. It is averred that they are not cited as acting in their capacities as trustees: nomine officio but that they act in their personal capacities. The excipient also complains that that the lease agreement is contradictory as it refers to different entities namely the “Orion”, Orion Group 2007”, and “Orion Property Holding Trust”.

[3] The first point bears no merits as the face of the summons and the description in the particulars of claim bear the following relevant description:

“… herein acting in their capacities as the only trustees of the Orion Property Holding Trust [Registration Number IT 11326/2005] (“The Trust”)

[4] The complaint regarding the description of the landlord is considered and it is noted in this regard that clause 1.7 of the agreement describes the landlord and refers to paragraph (i) for particularity. Paragraph (i) describes the landlord as Orion Property Holding Trust. There does not appear to be a contradiction in the description of the landlord and the plaintiffs are cited as the trustees of the same entity. Where the complaint is that a pleading is vague and embarrassing Rule 23(1) of the Uniform Rules of Court require the defendant to deliver a notice to the plaintiff to remove the cause of complaint. This did not occur in the present matter. In the premises the complaint of the excipient could not be sustained and I dismissed that ground of the exception.

[5] On the second ground the complaint related to the locus standi of the plaintiffs. The plaintiffs are not described as the owners or having the authority to sue. In this regard the respondents referred this Court to, Landlord and Tenant, W.E. Cooper Second Edition, p27-28 where it is stated that:

“…a person may let a property to which he has no title, and that the lessee may not dispute the lessor’s title.”(footnotes omitted)

Thus the respondents are not required to plead ownership or that they are authorised by the owner. The cause of action is based on the lease agreement not on the plaintiffs’ ownership. In terms of the agreement there was an undertaking to deliver the premises to the lessee, an agreement to use the premises temporarily and that the lessee would pay certain costs namely rental, operating costs and parking. The summons makes reference to the lease agreement and the terms thereof as well as the breach and the extent thereof with regard to non performance by the lessee.

[6] Mr Louw appearing for the respondent referred this Court to the decision in Clarke v Nourse Mines 1910 TPD 513 at p 521 where the court per Solomon J stated:

“The lessee having had undisturbed enjoyment of the premises under the lease, and having thus had all for which he contracted, it would be against good faith for him to set up the case that the lessor had no right to let him the property. Such a defence in an action for rent might, under Roman law, have been met by the exceptio doli mali”

[7] In Marney v Watson and Another 1978 (4) SA 140 (C) it was held per Grosskopf and Friedman JJ that where the wrong party has been cited it is competent to except to the summons. The Court however permitted the plaintiff to amend the summons to allege more specific grounds of agency. In the present matter both respondents are the only trustees of the Orion Property Holding Trust and thus are authorised to act on behalf of the Orion Property Holding Trust. The summons states that they act in the capacities nomine officio as the only trustees. I can see no merit in the claim that they do not have locus standi to act.

[8] In light of the above there is no merit to the complaint on the second ground of exception that there is no cause of action or that the particulars of claim are vague and embarrassing and that the defendant is not able to plead thereto.

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

1. Both grounds of exception are dismissed with costs of the exception

S Mia

Acting Judge of the South

Gauteng High Court, JHB

Counsel for the applicant: Adv. C Garvey

Instructed by: Klinkenberg Inc

Counsel for the respondent: Adv. PG Louw

Instructed by: Smit and Sewgoolam Inc

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