Lancino Financial Investment (Pty) Ltd v Bennet

The appellants (plaintiffs) instituted action in the High Court against the respondents for specific performance of an alleged executory cooperation agreement relating to the development of a township on immovable property (Plot 62) owned by the first respondent, alternatively for cancellation and damages, and further alternatively on enrichment. The pleaded agreement envisaged that the plaintiffs would procure township establishment at their own cost, that the property would be transferred to a new company jointly owned by the parties, and that the first respondent would ultimately be paid through proceeds of sales of erven. Before township approval, the first respondent sold and transferred the property to the second respondent, which the plaintiffs alleged constituted repudiation. The first respondent raised exceptions to the particulars of claim, two of which were upheld by the High Court, which then dismissed the main and first alternative claims with costs.

The appeal was upheld in part. The upholding of the exceptions stood, but the dismissal of the plaintiffs’ claims was set aside. The plaintiffs were granted leave to amend their particulars of claim within 20 days. No order was made as to the costs of the appeal.

The case reaffirms a fundamental principle of South African civil procedure: that after an exception is upheld, courts should almost invariably allow an opportunity to amend rather than dismiss a claim. It also highlights the need for precision in costs orders where separate costs are awarded for different aspects of proceedings.