One ground of exception raised by the brothers was that the attorney who signed the particulars of claim was not authorised to sign the pleadings.
They said an attorney who signs a combined summons is obliged to assert that he holds a certificate issued by the registrar of the high court in which he was admitted entitling him to the right of appearance in a high court.
“The plaintiffs' particulars of claim make no averment that the signatory to the plaintiffs' particulars of claim is authorised to sign pleadings and/or has the right of appearance in the high court,” lawyers for the two brothers said in the notice of exception filed with the court on October 1.
The Gupta brothers said in their particulars of claim, Eskom and the SIU raised seven claims (A to G) against Molefe, former Eskom CFO Anoj Singh, former Eskom COO Matshela Koko, former Eskom legal officer Suzanne Daniels, former government minister Mosebenzi Zwane, former Eskom board chairperson Ben Ngubane and former Eskom board member Chwayitha Mabude.
It said the eighth claim, Claim H, was against all defendants jointly and severally as an alternative to claims A to G.
“However, H in the particulars of claim seeks an order directing Ngubane, being the sixth defendant, to make payment to the plaintiffs.”
The lawyers said no relief in the particulars of claim was sought against the two Gupta brothers.
“The combined summons issued to the plaintiffs accordingly does not disclose any cause of action that is valid and good in law as against (Rajesh Gupta) and/or (Ajay Gupta) on any one of the grounds set out above.”
They are also asking the court to order Eskom and the SIU to pay the costs of this exception.
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Gupta brothers contest damages claim by SIU, Eskom to recoup R3.8bn
Journalist
Image: Muntu Vilakazi/Gallo Images
Rajesh 'Tony' Gupta and Ajay Gupta have launched an application to set aside the particulars of a claim filed by Eskom and the Special Investigating Unit (SIU) in August whereby they seek to recoup funds allegedly funnelled to the Gupta family.
In summons issued in the high court in Pretoria on August 3, Eskom and the SIU filed a claim for damages to recover approximately R3.8bn in funds from former Eskom executives, former board members, members of the Gupta family and others.
Eskom and the SIU said the funds were lost in a concerted effort to corruptly divert financial resources from the power utility to improperly and illegally benefit the Gupta family and entities controlled by the family during their acquisition of Optimum Coal Holdings.
The summons listed former Eskom CEO Brian Molefe and the Gupta brothers, among others.
Raising an exception means the brothers plead that the particulars of the claim are vague and lack the necessary allegation to disclose a cause of action or defence.
Guptas challenge Eskom and SIU as they try to claw back R3.8 billion
The court has to deal with the exceptions raised by the brothers before the Eskom/SIU case could go ahead.
The two brothers said Eskom's particulars of claim disclosed no cause of action against them.
One ground of exception raised by the brothers was that the attorney who signed the particulars of claim was not authorised to sign the pleadings.
They said an attorney who signs a combined summons is obliged to assert that he holds a certificate issued by the registrar of the high court in which he was admitted entitling him to the right of appearance in a high court.
“The plaintiffs' particulars of claim make no averment that the signatory to the plaintiffs' particulars of claim is authorised to sign pleadings and/or has the right of appearance in the high court,” lawyers for the two brothers said in the notice of exception filed with the court on October 1.
The Gupta brothers said in their particulars of claim, Eskom and the SIU raised seven claims (A to G) against Molefe, former Eskom CFO Anoj Singh, former Eskom COO Matshela Koko, former Eskom legal officer Suzanne Daniels, former government minister Mosebenzi Zwane, former Eskom board chairperson Ben Ngubane and former Eskom board member Chwayitha Mabude.
It said the eighth claim, Claim H, was against all defendants jointly and severally as an alternative to claims A to G.
“However, H in the particulars of claim seeks an order directing Ngubane, being the sixth defendant, to make payment to the plaintiffs.”
The lawyers said no relief in the particulars of claim was sought against the two Gupta brothers.
“The combined summons issued to the plaintiffs accordingly does not disclose any cause of action that is valid and good in law as against (Rajesh Gupta) and/or (Ajay Gupta) on any one of the grounds set out above.”
They are also asking the court to order Eskom and the SIU to pay the costs of this exception.
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