Asante Body Corporate v Portland Beleggings (Pty) Ltd and Another

The Plaintiff, Asante Body Corporate, is the body corporate of a residential sectional title scheme known as Asante. The First Defendant, Portland Beleggings (Pty) Ltd, was allegedly responsible for the development of the scheme, including its design and construction. The Second Defendant, Remey Construction (Pty) Ltd, was the building contractor appointed by the First Defendant to construct the scheme. After construction, defects manifested in the common property of the scheme. The Plaintiff instituted a delictual action for pure economic loss against the First Defendant, claiming damages quantified as the reasonable and necessary costs of repairing the defects in the common property, amounting to R3,122,410.00. The claim against the Second Defendant was withdrawn. The First Defendant raised an exception to the Plaintiff's Particulars of Claim, alleging that the Plaintiff failed to plead sufficient material facts to sustain a cause of action. The exception attacked clauses 5, 6, 7, 11, and 13 of the Particulars of Claim on three grounds: failure to plead sufficient facts to sustain conclusions of negligence, wrongfulness, and causation; failure to plead sufficient facts establishing that the First Defendant owed a legal duty; and failure to plead sufficient facts to sustain the conclusion that the reasonable and necessary costs of repairs constituted the damages claimed.

• Whether the Plaintiff's Particulars of Claim disclose a cause of action for pure economic loss in delict against the First Defendant.
• Whether the Plaintiff pleaded sufficient material facts to sustain the legal conclusion that the First Defendant's conduct was wrongful and negligent, and that it caused the Plaintiff's damages.
• Whether the Plaintiff pleaded sufficient facts to establish that the First Defendant owed the Plaintiff a legal duty to prevent the pure economic loss suffered.
• Whether the Plaintiff pleaded sufficient facts to sustain the conclusion that the reasonable and necessary costs of attending to defects constitute the damages claimed.

The First Defendant's exception was upheld. The Plaintiff was granted leave to deliver its amended Particulars of Claim within 10 days from the date of the order. The Plaintiff was ordered to pay the costs of the exception, including the costs of counsel where so employed, on Scale A.

Where a plaintiff sues in delict for pure economic loss, the negligent causation of such loss is not prima facie wrongful. The plaintiff must plead sufficient material facts to sustain the conclusions that the defendant's conduct was wrongful and negligent, that a legal duty was owed by the defendant to the plaintiff, and that policy considerations justify extending Aquilian liability. Pleading bald legal conclusions without the underlying material facts (facta probanda) is insufficient to sustain a cause of action. Additionally, under Rule 18(10), a plaintiff suing for damages must set them out in a manner that enables the defendant reasonably to assess the quantum thereof.

The court noted that in instances where substantial exceptions against Particulars of Claim are upheld on the basis that the pleadings are bad in law, an invariable rule of practice has been adopted by our courts to order that the pleadings be set aside to allow the party whose pleading is struck down an opportunity to amend. The court also observed that the First Defendant, from the wording of the exception, showed no indication that it had requested the Plaintiff to consider an amendment prior to raising the exception.

This judgment reinforces the stringent pleading requirements in South African law for delictual claims based on pure economic loss. It confirms that plaintiffs cannot rely on inferences of wrongfulness flowing from physical damage to property when claiming pure economic loss, and must expressly plead the material facts establishing wrongfulness, legal duty, and the policy considerations warranting the extension of Aquilian liability. The case also reaffirms the importance of Rule 18(10) compliance in pleading damages. It serves as a useful illustration of how courts apply exception procedures to weed out legally insufficient pleadings in pure economic loss claims arising from construction defects in sectional title schemes.