Voget and Others v Kleynhans

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: van Reenen J
• Judgment Date: 08 August 2002
• Citation: 2003 (2) SA 148 (C)
• Hearing Date: 18 June 2002
• Docket Number: 3119/2002
• Counsel: G G Goosen for the excipient (defendant). D M de Lange for the respondents (plaintiffs).

Van Reenen J:

[1] First, second and third plaintiffs have instituted an action in this Court in which they claim payment from the defendant of an H amount of R970 000, interest thereon a tempore morae and costs of suit.

[2] The plaintiffs base their cause of action thereon that the defendant, an attorney who represented second and third plaintiffs in an action instituted against them by one L Naude (Naude) under case No 49/96, acted in breach of an express alternatively, an implied term I of their agreement to 'perform the services in a proper and professional manner and without negligence' and that they, as a consequence thereof, suffered damages in the amount claimed.

[3] First and second plaintiffs are married in community of property. J

Van Reenen J

[4] As second and third plaintiffs were unable to satisfy the judgment obtained against them pursuant to a settlement that had been A reached with Naude, the joint estate of first and second plaintiffs was sequestrated. That resulted in both of them being insolvents for the purposes of the provisions of the Insolvency Act 24 and 1936 (the Act) (see De Wet NO v Jurgens 1970 (3) SA 38 (A) at 48C - H; Ex parte Geeringh 1980 (2) SA 788 (O) at 788 in B fine - 789A; Acar v Pierce and Other Like Applications 1986 (2) SA 827 (W)).

[5] The defendant entered an appearance to defend and, in addition to filing a plea in which he denied liability, filed an exception in the following terms: C

'1.

The first and second plaintiffs are unrehabilitated insolvents.

2.

The alleged cause of action upon which the first and second plaintiffs rely arose prior to the sequestration of the first and second plaintiffs.

3.

The first and second plaintiffs' claim does not fall within the scope of claims in s 23 of the Insolvency Act 24 of 1936 in terms D of which the first and second plaintiffs can sue in their own name.

4.

Accordingly the first and second plaintiffs have no locus standi to bring the action against the defendant.'

[6] I assume that the concept 'locus standi' in para 4 of the notice of exception has been used in the sense of a E direct and substantial interest in the right which is the subject-matter of the litigation and the outcome thereof (see Jacobs en 'n Ander v Waks en Andere 1992 (1) SA 521 (A) at 533 in fine - 534B) and not in the sense of legal capacity to litigate.

[7] The question whether a party has locus standi to sue may be dealt with by means of an exception (see Van Zyl NO v F Bolton 1994 (4) SA 648 (C) at 651D - E and the cases there cited).

[8] The onus of showing that a pleading is excipiable rests on an excipient (see Kotsopoulus v Bilardi 1970 (2) SA 391 (C) at 395D; Amalgamated Footwear and Leather Industries v Jordan & Co Ltd 1948 (2) SA 891 (C) at 893; South African G National Parks v Ras 2002 (2) SA 537 (C) at 541E - 542F).

[9] For the purpose of deciding an exception a court must assume the correctness of the factual averments made in the relevant pleading, unless they are palpably untrue or so improbable that they cannot be H accepted (see Natal Fresh Produce Growers' Association and Others v Agroserve (Pty) Ltd and Others 1990 (4) SA 749 (N) at 754J - 755B; Van Zyl NO v Bolton (supra at 651E - F)).

[10] The factual averments in the plaintiffs' particulars of claim, if accepted as correct, in my view, do constitute a cause of I action against the defendant in respect of at least part of the damages that they are claiming from the defendant.

[11] Does that cause of action form part of the first and second plaintiffs' insolvent estate? J

Van Reenen J

[12] In terms of the provisions of s 20(1) of the Act the effect of the sequestration of the estate of an insolvent is to...