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[2021] ZAWCHC 47
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Zilwa v Member of the Executive Council for the Department of Transport and Public Works and Another (18320 / 2019) [2021] ZAWCHC 47 (18 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE NUMBER: 18320 / 2019
In
the matter between:-
HYMIE
ZILWA
Plaintiff
and
MEMBER OF THE EXECUTIVE COUNCIL FOR
THE DEPARTMENT OF TRANSPORT AND
PUBLIC
WORKS
First Defendant
MINISTER OF
POLICE
Second Defendant
Coram: Wille, J
Heard: 11
th
of March 2021
Delivered: 18
th
of March 2021
JUDGMENT
WILLE,
J:
Introduction
[1]
This is an opposed application about some exceptions filed by the
first and second
defendants. The parties will be referred to as they
have been cited in the action proceedings. The first and second
defendants
will be referred to as the defendants, unless specifically
otherwise indicated. The defendants filed exceptions to the
plaintiff’s
particulars of claim on the basis that such
particulars of claim were vague and embarrassing and also lacked the
necessary averments
to sustain a cause of action.
[2]
The plaintiff at the outset contends that the exceptions as filed by
the defendants
are defective in that same do not comply with the
rules of the court.
[1]
The argument is that rule 18(1) provides that a combined summons and
every other pleading, except a summons, shall be signed
by both an
advocate and an attorney or, in the case of an attorney who has
rights of appearance in terms of section 4(2) of the
Act.
[2]
[3]
It is so that when an attorney signs a pleading, not as an
individual, but on behalf
of a firm representing a litigant, it is
incumbent upon that attorney to sign the pleading twice. The
attorney must sign
once in his capacity as the certified attorney and
then once again on behalf of the firm of attorneys. The
reference to section
4(2) should also now be read with reference to
section 25(3) of the Legal Practice Act.
[3]
[4]
The exceptions filed by the defendants are both signed by the ‘Office
of the
State Attorney’ representing the defendants in terms of
the State Attorneys Act.
[4]
An exception is a pleading and therefore falls to be signed by both
an advocate and an attorney or by an attorney enjoying
the requisite
certified rights of appearance.
[5]
The exceptions in this matter are not signed by an attorney who
exhibits that he has the necessary certified rights of appearance
and
they are also not signed by an advocate. The plaintiff submits
that the exceptions as currently formulated are a nullity
[6]
,
alternatively are fatally defective.
[7]
[5] The
defendants themselves in turn raise a technical point in connection
with the signature
of the particulars of claim on behalf of the
plaintiff. The essence of this objection is that the attorney
who signed the
particulars of claim merely stated that he was so
certified, but makes no reference to the actual legislation
empowering him to
do so. In my view, specific reference to the
fact that the attorney was so certified, is sufficient.
Factual
Matrix
[6]
In summary, the plaintiff’s cause of action against the
defendants is that he
was unlawfully arrested in Laingsburg (for
allegedly exceeding the speed limit), by traffic officers whilst in
their course and
scope of employment with the first defendant and
similarly thereafter unlawfully detained by members of the second
defendant.
[7]
The plaintiff was detained from 17h00 until 23h00 and thereafter
released. The
plaintiff’s claim is for unlawful arrest
and for special and general damages suffered as a result thereof.
The claim
is against the defendants, jointly and severally, the one
paying the other to be absolved. The liability of both of the
defendants
is for the unlawful and wrongful conduct of their
employees’ whilst acting in the course and scope of their
employment.
These claims are potentially under the provisions
of sections (1) and (2) of the State Liability Act.
[8]
Discussion
[8]
The second defendant objects to the plaintiff’s particulars of
claim on the
basis that the plaintiff fails to provide sufficient
particularity in connection with the involvement of the second
defendant’s
employees with his arrest and detention and as a
result, the second defendant is unable to meaningfully answer to the
plaintiff’s
claims as currently formulated.
[9]
The plaintiff contends for the position that the second defendant is
sued in these
proceedings for the actions of the police pertaining to
his unlawful detention. The particulars of claim aver that the first
defendant’s
employees arrested the plaintiff, while the second
defendant’s employees thereafter unlawfully detained the
plaintiff.
[10]
Another ground of objection raised by the defendants is the averment
that there is no clarity
in the plaintiff’s cause of action,
nor is there clarity as to whether it is the first defendant’s
members or the second
defendant’s members that are implicated
in the cause of action against them. It is clear from the
formulation of the
particulars of claim that the employees of the
first defendant are implicated with the arrest of the plaintiff,
whereas the employees
of the second defendant are implicated with the
plaintiff’s subsequent detention.
[11]
The second defendant also avers that the plaintiff has failed to set
out his alleged damages
in such a manner so as to enable the second
defendant to reasonably assess the quantum thereof as required by the
court rules.
[9]
On this score, the plaintiff tabulated the quantum of his
damages as follows: he set out exactly how much he has claimed
for his unlawful arrest: he set out how much he has claimed as
general damages: he set out how much he has claimed
for
contumelia
and
he sets out how much he has claimed as a result of his unlawful
detention. Finally, he also sets out his special damages
as
listed under (3) separate headings.
[12]
To this end it is trite that there is no obligation on the plaintiff
to plead evidence. The defendants
are in a position to plead to the
plaintiff’s averments in connection with the quantum of his
alleged damages. If they believe
that the amounts claimed are
unreasonable or do not accord with previous awards made in cases of a
similar nature then they are
clearly in a position to plead
accordingly.
[13]
The final objection raised by the defendants is the allegation that
the National Prosecuting
Authority was not cited as a party to these
proceedings. The argument is that no cause of action is
accordingly disclosed.
In contrast to this, the plaintiff
submits that in our adversarial system it is for the parties to set
out and define the nature
of their disputes and it is for the court
to adjudicate upon those disputes.
[10]
I agree.
[14]
The plaintiff in this case is at liberty to determine the extent of
the claims that he intends
to pursue and against whom such claims are
to be directed. The fact that the plaintiff has not cited a
particular person
does not necessarily make his claim the subject of
an exception. In any event, on a reading of the material before
me, the
defendants will have some difficulty in raising the shield of
a non-joinder or a misjoinder in connection with the alleged failure
to cite the National Prosecuting Authority as a party to the action.
[15]
In summary, the defendants raise similar grounds of objection in
their exceptions to the plaintiff’s
particulars of claim. When
the court is faced with an exception on the basis that a pleading is
vague and embarrassing, a
two-fold enquiry applies, namely:
that the court must first consider whether the pleading lacks
particularity to such an
extent that it is vague and if there is
vagueness, the court must then ascertain whether such vagueness
causes embarrassment of
such a nature that the excipient is
prejudiced.
[11]
[16]
The onus to establish these requirements rests with the excipient.
The approach to be adopted
is that an exception should not be
allowed unless the excipient would be seriously prejudiced if the
offending allegations were
not expunged.
[12]
Besides, an exception that a pleading is vague and embarrassing must
strike at the formulation of the cause of action and not at
its
validity. Accordingly, it falls to be directed at the whole
cause of action and not at a particular paragraph within
the pleaded
cause of action.
[13]
[17]
An exception must of a matter of law go to the root of the entire
claim and more importantly,
the onus rests squarely on the excipient
to persuade the court that upon every interpretation which the
particulars of claim could
reasonably bear, no cause of action would
be disclosed.
[14]
Put in a different way, an exception will be upheld only, if no
possible evidence led on the pleadings can sustain a cause
of
action.
[15]
[18]
The object of an exception is to dispose of the case or a portion
thereof in an expeditious manner.
[16]
This is a procedure designed to obtain a decision on a point of law
which will dispose of the case in whole or in part, and
avoid the
leading of unnecessary evidence at trial. If it does not have
this effect, the exception should not be upheld.
[17]
[19]
The test to be applied is somewhat diluted in connection with an
exception advancing that a pleading
is vague and embarrassing.
Prejudice is the threshold in this latter case and an exception will
not be allowed unless the
excipient will be seriously prejudiced if
the offending allegations were not expunged.
[18]
The onus is on the excipient to show both vagueness amounting
to embarrassment and the embarrassment, in turn, amounting
to
prejudice.
[20]
The objections
[19]
filed by the defendants, in my view have not been properly signed in
accordance with the court rules and fall to be struck out.
Fortunately, I do not however have to make a definitive finding in
this connection because the facts and circumstances upon which
the
plaintiff intends to rely at the hearing of the trial action have
been sufficiently pleaded and the defendants know exactly
what case
they have to meet at the trial.
[21]
In all the circumstances, I am of the considered view that the
particulars of claim, as formulated,
disclose a valid and proper
cause of action against the defendants and I am also of the view that
the particulars of claim are
not vague and embarrassing. Put in
another way, the defendants know exactly what case they have to meet
at the trial.
[22]
In the result, the following order is made:
1.
That
the exceptions are dismissed
2.
That
the defendants, jointly and severally, the one paying the other to be
absolved, are ordered to pay the costs of and incidental
to the
exception proceedings
(including
the costs of two counsel where so employed)
,
on the scale as between party and party, as taxed or agreed.
_______________________
E D WILLE
Judge
of the High Court
Western
Cape Division
[1]
The Uniform rules of
court
[2]
Right of Appearance in Courts
Act, 1995 (Act No. 62 of 1995)
[3]
Section 119 (3) of Act
28 of 2014
[4]
Act 56 of 1957
[5]
Haarhoff v Wakefield
1955(2) SA 425 (E)
[6]
Lancino Financial
Investments (Pty) Ltd v Bennett
2006 JDR 249 (T)
[7]
Icebreakers NO. 83 (Pty)
Ltd v Medi Cross Healthcare Group (Pty) Ltd
2011 (5) SA 130
at (D)
[8]
Act 20 of 1957
[9]
Rule 18 (10)
[10]
Fischer v Ramahlele
2014(4) SA 614 (SCA)
[11]
Hlophe v South
African Reserve and Another
1992(3) SA 208
[12]
Francis v Sharp and
Others
2004 (3) SA
230
(C)
[13]
Nel and Others NNO v
Mc Arthur and Others
2003 (4) SA 142 (T)
[14]
Francis v Sharp
2004 (3) SA 230 (C)
[15]
Vermeulen v Goose Valley
Investments (Pty) Ltd
2001 (3) SA 986
(SCA)
[16]
Barclays National Bank Ltd
v Thompson
1989
(1) SA 547 (A)
[17]
Miller v Bellville
Municipality
1971
(4) SA 544 (C)
[18]
Levitan v Newhaven Holiday
Enterprises CC
1991 (2) SA 297
(C)
[19]
In the defendants’
notices of exception