Vernon and Others NNO v Bradley and Others NNO

• Jurisdiction: South Africa

Vernon and Others NNO v Bradley and Others NNO
1965 (1) SA 422 (N)

1965 (1) SA p422

Citation	1965 (1) SA 422 (N)
Court	Natal Provincial Division
Judge	Henning J
Heard	October 21, 1964
Judgment	November 12, 1964

Flynote : Sleutelwoorde A

Practice — Pleadings — Exception lacking a prayer — Such bad — Power of Court to order an amendment — When exercised — Parties — Declaration B claiming acquistion of immovable property of trust by prescription — Prescription — Acquistion of immovable property by — Defendants alleged to be registered owners as fiduciaries or curators — As such the 'true owners' — Declaration not excipiable — No need to allege user adverse to C beneficial owners — Such having no registered real rights — Trust — Acquisition of property of by prescription — Parties.

Headnote : Kopnota

Although an exception which lacks a prayer is bad, the Court has the power to order an amendment to make good the defect, provided no prejudice or injustice is thereby caused to the respondent.

Plaintiffs, in their capacity as the trustees appointed to hold property for and on behalf of the Church of the Province of South Africa, claimed D against the defendants, in their capacity as the curators of the Church of England properties referred to in Schedule C of Act 9 of 1910 (N), an order declaring that the plaintiffs had obtained ownership of certain immovable property by prescription. The declaration alleged defendants to be the successors in office to the registered owners of the property as the curators thereof. The defendants excepted to the declaration on the ground that the plaintiffs had not alleged that the exercise of full E rights of ownership had been adverse to the church or its members.

Held, that there was no reason why acquisitive prescription should not run against a registered owner who had no legal right to dispose of the property which he held: although a fiduciary was not entitled to dispose of the property entrusted to him, he might lose his rights to another by prescription: as the registered owner he was the 'true owner' against whom adverse user had to be alleged.

Held, further, that the members of the Church of which the defendants F were the curators had no registered real rights and that it was not necessary for the plaintiffs to allege user adverse to them. Exception accordingly dismissed with costs.

Case Information

Argument on exception. The nature of the pleadings appears from the reasons for judgment.

R. C. C. Feetham, for the respondents (plaintiffs). G

M. L. Mitchell, for the excipients (defendants).

Cur adv vult.

Postea (November 12th). H

Judgment

Henning, J.:

This matter comes before the Court on exception. Two days before the hearing the respondents gave written notice that they would ask in limine for the exception, which was filed on 14th September, 1964, to be struck out on the ground that it was bad because it contained no prayer for relief. On the following day the respondents' attorneys were advised that the excipients conceded that the exception

1965 (1) SA p423

Henning J

was defective in form and that an amendment would be applied for so as to add a suitable prayer. When the matter came before the Court, Mr. Feetham, for the respondents, applied for the exception to be struck out A and Mr. Mitchell, for the excipients, made an application for leave to amend the exception by adding a prayer in the following terms:

'Wherefore the defendants pray that the exception be allowed with costs and the action be dismissed with costs.'

The applications were heard together. In the result, I granted the amendment sought and ordered each of the parties to pay their own costs in respect of the application to amend, and the excipients to pay the respondents' costs involved in the point taken in limine. My reasons B follow.

In Pietermaritzburg City Council v Local Transportation Board, Pietermaritzburg, 1960 (1) SA 254 (N) at p. 256, the decision in an unreported case there cited, that an exception which did not contain a C prayer for relief was bad, was applied and by consent the exceptions were suitably amended. In Kistensamy v Bramdaw and Others, 1962 (3) SA 797 (D), exceptions which lacked a prayer were struck out and an application by the excipient to amend was refused. In that case I assumed that the defect could be cured by an appropriate amendment. Further particulars of the allegations in the declaration were furnished D after the exceptions had been filed, with the result that the basis for one of them fell away. Counsel also stated in that case that the merits of the exception would be argued on some future date, should the amendment sought by the excipient be granted. As appears from the judgment, the excipient was in terms of the Rules at liberty to file fresh exceptions if those before the Court were struck out. In those E circumstances I considered that the best course would be to strike out the exception.

Mr. Feetham's opposition to the application to amend was based solely on the fact that the excipient filed a plea simultaneously with the F exceptions...