Ramatshimbila v Phaswana

The appellant (plaintiff) instituted proceedings against the respondent (defendant) seeking two main forms of relief. In her main claim (claim one), she sought: (a) dissolution of a putative marriage; (b) equal division of the joint estate; (c) a declaratory order that a partnership existed between the parties in equal shares in respect of several businesses; and (d) an order dissolving the partnership and distributing assets equally. The plaintiff alleged that she entered into an unregistered customary marriage with the defendant on 16 August 2008, unaware that he was already married in a civil marriage. In the alternative (claim two), she claimed R3,000,000 in damages for fraudulent misrepresentation, alleging the defendant falsely represented that he was unmarried during customary marriage negotiations, causing her damages. The defendant excepted to both claims on the ground that the particulars of claim disclosed no cause of action. The high court (Makhafola J) upheld the exception with costs and granted the plaintiff leave to amend her particulars of claim.

• Whether the order of the high court was appealable where the exception was upheld but leave to amend was granted
• Whether the plaintiff's main claim (claim one) disclosed a cause of action for both a putative marriage and a universal partnership
• Whether non-joinder of the defendant's wife was a valid ground for exception
• Whether the alternative delictual claim (claim two) for fraudulent misrepresentation disclosed a cause of action
• Whether the exception should have been upheld pro tanto where two forms of relief were sought

The appeal succeeded in part. The order of the high court was set aside and replaced with: (a) The exception to claim one (main claim) is upheld with costs. The plaintiff's particulars of claim in the main claim are set aside and she is given leave to file amended particulars of claim by 31 October 2014. (b) The exception to the alternative claim (claim two) is dismissed with costs. Each party was ordered to pay his or her own costs of appeal in the Supreme Court of Appeal as well as costs of the application for leave to appeal.

The binding legal principles established are: (1) When an exception is upheld on the ground that particulars of claim do not disclose a cause of action and leave to amend is granted, the order is appealable only if it is incapable of being amended or if the order/judgment is unclear about the basis for the decision. (2) Mutually inconsistent causes of action (such as putative marriage and universal partnership) cannot be rolled up into a single claim - they must be properly pleaded in the alternative as they have different legal consequences. (3) Non-joinder can be raised by way of exception. (4) In a claim concerning a joint estate arising from marriage in community of property, the other spouse must be joined as a party as they have a substantial interest in the joint estate - each spouse enjoys an equal undivided share and cannot transfer their half-share during the subsistence of the marriage. (5) A delictual claim for fraudulent misrepresentation inducing entry into an invalid customary marriage discloses a cause of action - the plaintiff may recover delictual damages for actual losses and discretionary sentimental damages for contumelia. (6) Where particulars of claim seek two forms of relief and reveal a cause of action for one but not the other, the court should uphold the exception pro tanto (partially) rather than in its entirety. (7) In a delictual claim against a married person, liability is personal to the wrongdoer; pursuant to s 19 of the Matrimonial Property Act 88 of 1984, damages are recoverable first from the separate property of the liable spouse and only if no separate property exists, from the joint estate (with adjustment upon division).

The court made several non-binding observations: (1) The court noted that although the plaintiff did not specifically allege that the universal partnership came into existence by tacit agreement, it was apparent from her averments that this was the case she sought to advance. (2) The court observed that the plaintiff's failure under Rule 18(6) to set out the material facts with sufficient particularity in relation to the partnership claim may result in her particulars being deemed an irregular step in the proceedings. (3) The court commented that while the alternative delictual claim was "inelegantly pleaded" and the various heads of damage were "awkwardly separated", it would nevertheless sustain a cause of action. (4) The court made critical observations about the quality of the high court's judgment, noting it should have analysed the grounds of exception specifically in relation to each of the two claims separately so that the plaintiff was left in no doubt about what needed to be rectified. (5) The court observed that both the pleadings were badly drawn and the grounds of exception were not clearly and succinctly stated, which influenced the costs order requiring each party to bear their own costs given these deficiencies on both sides.

This case is significant for clarifying several important principles in South African civil procedure and substantive law: (1) It establishes when orders upholding exceptions with leave to amend are appealable - namely when the pleadings are incapable of amendment or when the order is unclear about what needs amendment. (2) It reinforces that mutually inconsistent causes of action cannot be combined in a single claim and must be properly pleaded in the alternative. (3) It clarifies the requirements for putative marriage under South African law in the context of customary marriages. (4) It confirms that non-joinder can be raised by way of exception and must be considered particularly where joint estates are involved in marriages in community of property. (5) It demonstrates the proper approach to exceptions where multiple forms of relief are sought - courts should uphold exceptions pro tanto rather than in toto. (6) It distinguishes between breach of promise claims and delictual claims for fraudulent misrepresentation in the matrimonial context. The case also illustrates the importance of clear pleadings and clearly stated grounds of exception.