Charugo Development Co (Pty) Ltd v Maree, NO

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Botha JA, Holmes JA, Wessels JA, Trollip JA and Rabie JA
• Judgment Date: 04 June 1973
• Citation: 1973 (3) SA 759 (A)
• Hearing Date: 25 May 1973

Botha J.A.:

In an action in which the E appellant (plaintiff in the Court a quo) claimed an order in the Cape Provincial Division directing the respondent (defendant in the Court a quo) to effect transfer in the name of the plaintiff, against payment by it of the purchase consideration, of certain immovable property alleged to have been purchased by it from F the defendant, the latter excepted to plaintiff's particulars of claim on the ground

'that they are bad in law and lacking averments which are necessary to sustain an action',

and, in the alternative, applied, in terms of Rule 23 (2) of the Uniform Rules of Court, for the striking out of certain portions of the particulars of claim on the ground that they are irrelevant or G vexatious. The exceptions were dismissed, but the application for striking out succeeded with costs, including the costs of the unsuccessful exceptions to the declaration. There is no appeal against the order dismissing the exceptions, but the plaintiff now appeals to this Court against the order striking out certain portions from the declaration and the order as to costs.

H In para. 2 of the declaration it is alleged that the defendant is Florence Katrina Maree in her capacity as executrix testamentary in the estate of the late William George Bowes. It is alleged in para. 3 that on or about 16th June, 1971, and at Cape Town the plaintiff and the defendant entered into a written deed of sale (annexure 'A') in terms whereof plaintiff purchased and defendant sold certain erf 2022 Grassy Park, situated at Lotus River. It is further alleged in the last sentence of para. 3 that -

Botha JA

'In entering into the said agreement, plaintiff was represented by its director, one C. T. van Schoor, and defendant was represented by Leslie Lawford John Chiddy, acting in terms of a general power of attorney, copy of which is annexed hereto marked 'B', which was executed in his favour by defendant on or about 10th February, 1971, at Cape Town.'

A Annexure 'A' purports to be a deed of sale entered into between the estate of the late William George Bowes and the plaintiff company. For the seller the deed was signed by the aforesaid Chiddy on behalf of F. K. Maree, executrix testamentary of the estate of the late W. G. Bowes, B while the aforesaid van Schoor signed on behalf of the purchaser. Annexure 'B' purports to be a general power of attorney executed in favour of the aforesaid Chiddy by 'Florence Katrina Maree (born Klue), widow, born on 20th April, 1919'.

Para. 9 of the declaration contains the following allegation -

'On or about 30th June, 1971 defendant made a declaration by the seller in respect of the said sale, copy of which is hereto annexed marked 'C', C and on the same date she executed in favour of the said Chiddy a power of attorney to pass transfer in respect of the said sale, copy of which is hereto annexed marked 'D'. Notwithstanding, she refuses to transfer erf 2022 into plaintiff's name.'

Annexure 'C' purports to be a declaration by the defendant declaring D that on 16th June, 1971, the said erf 2022 was sold to the plaintiff by the estate of the late William...